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Directors Maurice Watkins: President The School of Law at King’s College London · issues for individual athletes: doping, Murray Rosen QC: Chairman offers a one-year, part-time postgraduate discipline, player contracts, endorsement Mel Goldberg: Deputy Chairman course in sports law, leading to a College contracts, civil and criminal liability for Gerry Boon: Hon. Treasurer Postgraduate Certificate in Sports Law. sports injuries; Karena Vleck: Hon. Secretary The course is led by programme director · EC law and sport: competition law, freedom Darren Bailey Jonathan Taylor, partner and head of the Sports of movement; and Nick Bitel Law Group at Hammonds, who teaches the Walter Cairns course along with other leading sports law · comparative sports law: the North American Edward Grayson practitioners including Adam Lewis, Nick Bitel, Model of Sport. Paul Harris Alasdair Bell, Justin Walkey and Mel Stein, as Tim Kerr QC well as sports law academics such as Simon The course is taught in weekly evening classes Peter McInerney Walter Nicholls Gardiner, Gary Roberts and Richard McLaren. from October to March and is open to both Fraser Reid law graduates and non-law graduates. Sam Rush The course covers the range of key sports law For further details, visit the KCL sports law Kuldip Singh QC issues: website at www.kclsportslaw.co.uk. Jonathan Taylor · constitutional issues: self-regulation by sports Richard Verow governing bodies/the European Model of For a full prospectus and application form, Sport; judicial control of sports bodies; contact: Annette Lee, School of Law, King’s College London, Strand, London WC2R 2LS 0161 236 8288 · commercial issues: broadcasting, sponsorship, Tel: 020 7848 2849 · Fax: 020 7848 2912 IP rights, ambush marketing; E-mail: [email protected] Final Film CPD credits available; equality of opportunity is College policy. Registered in England. Company No. 4947540. Registered Office: 29-39 London Road, ISSN 1353-0127 Twickenham, Middlesex TW1 3SZ. VAT Reg No. 673 5989 73 Graphic Design VOLUME 12 · ISSUE 2 · 2004

Sport and the Law Journal } 4 OLTnqs Volume 12 Issue 2 Sport and the Law Journal Contents Editorial

Editorial 2

Inhaled Beta Agonists: 4 Ergogenic, dangerous and By Simon Gardiner against the spirit of sport: Editor Fact or fallacy? Dr Bruce Hamilton am very pleased to have accepted the offer of the Anti-doping policy after The 12 Editorship of the Sport and the Law Journal. Over the Human Rights Act: Is mandatory Ilast twelve years it has grown into a highly respected blood testing compatible with Journal in the emerging discipline of Sports Law. An Article 8 of the ECHR? enormous debt of gratitude is owed to Ray Farrell in his Wendy Hiscox role as editor over this period. During 2004 thanks also should be given to a number of BASL Board members Should major league baseball 18 including Murray Rosen and Jonathan Taylor in helping adopt the WADA world the publications of the last two editions. anti-doping code to regulate the But now is a time for evaluation of the future direction use of anabolic steroids? of the Journal. One major development planned is a web- Leslie A. Ross based presence for the Journal – more about this in the future. A short questionnaire is included with this issue Football disciplinary codes 28 to help evaluate both the Journal’s future form and – The triumph of expediency content. Your feedback will be greatly appreciated in over justice helping guide the Journal’s future direction. Mel Goldberg and Simon Pentol This edition of the Journal features three papers written as part of the final assessment of the KCL Community Amateur 32 Postgraduate Certificate in Sports Law run by BASL Sports Clubs – Important Board member Jonathan Taylor at King’s College Tax Incentives! London. They have a common focus on the issues of Richard Baldwin anti-doping in sport. The WADA Code, with its dual aims of harmonisation of the anti-doping procedures Football’s finances – never 36 across sports and universality of application to all sport far from the headlines around the world, has been in operation for some time. Dan Jones and Gerry Boon Two of the articles evaluate specific issues concerning WADA from an illuminating medico-legal perspective. Dr Sports Law Current Survey 44 Bruce Hamilton’s article entitled, ‘Inhaled Beta Agonists: Walter Cairns Ergogenic, Dangerous and Against the Spirit of Sport: Fact or Fallacy?’ examines the problem with drugs that Sport and the Law Journal 98 are used for the treatment of complaints such as Reports 2004 asthma and the application of the Therapeutic Use Exemption under WADA. Dr Wendy Hiscox’s article BASL Accounts: For the year 112 entitled, ‘Anti-Doping Policy after the Human Rights Act: ended 31 December 2003 Is Mandatory Blood Testing Compatible with Article 8 of the ECHR?’ revisits the debate concerning drug testing and the invasion of individuals’ privacy. Lastly, Leslie Ross’s article entitled, ‘Should Major League Baseball adopt The Wada World Anti-Doping Code to Regulate the Use of Anabolic Steroids’, evaluates the resistance being shown by some sports, specifically the main north American professional leagues, to being subject to WADA. The Journal welcomes papers from post-graduate students (and indeed outstanding papers from under-

2 Sport and the Law Journal Volume 12 Issue 2

graduate students) studying either on taught or research- based Sports Law related degrees. A further three papers from the KCL course will appear in the next edition. Further information about the KCL course can be found at www.kclsportslaw.co.uk or upon request by e-mail to [email protected]. In addition, Mel Goldberg & Simon Pentol’s article entitled, ‘Football Disciplinary Codes – The Triumph of Expediency over Justice’, examines the opportunities for challenging internal procedures in football. Richard Baldwin’s article entitled ‘Community Amateur Sports Clubs – Important Tax Incentives!’ promotes the taxation changes that will financially benefit small sports Left to right: Kuldip Singh QC - Board member, Ray Farrell - Former clubs, and his colleagues from Deloitte including Gerry Secretary, Maurice Watkins - President & Paul Harris - Board Boon and Dan Jones, provide some highlights of the member at Stock Restaurant, Manchester on 3rd November after ‘Deloitte Annual Review of Football Finances’ (now in presenting Ray Farrell with a token of the Association’s appreciation for his long and dedicated service as Secretary, and also as Editor of its 13th year!). The regular contributions of the Sports the Journal, from the Formation of the Association until his Law Current Survey and Sport and the Law Journal resignation earlier this year. Reports can also be found. Finally for the first time, the Annual Accounts of the Association up to December 2003 are published in the Journal. The Association’s Annual Conference took place at I look forward to hearing your responses on the Lord’s Cricket Ground on the 20th October. future development of the Sport and the Law journal. Congratulations to those involved in the organisation of what was again an informative and stimulating event. signature to The Sports Law world in the UK has developed go in significantly over the last twelve years. A growing body of literature has appeared in terms of books, both targeting the practice and academic analysis of Sports Law. A number of journals including this one, present Simon Gardiner topical and important debate on the incredibly wide Associate Professor in Sports Law range of issues that are to be found in this discipline. Griffith University Indeed there are many intellectually rigorous, complex Email: [email protected] and contested issues that constantly emerge. The Simon Gardiner is Associate Professor in Sports Law at the Griffith University Law different perspectives on WADA highlighted by the School located on the Gold Coast, Australia and member of the teaching faculty for the articles in this edition prove this point. There continues University’s LLM/MA International Sports Law. He is also Senior Research Fellow at the Asser International Sports Law Center, TMC Asser Institute in The Hague. He is however to be considerable division within the sports world as to primarily based in the UK and assists the organisation of the KCL PG Certificate Course. He has been involved in funded research projects and consultancy for a range of sports whether the approach of WADA is the best way to bodies and has worked with the European Union in terms of anti-doping provisions and the regulation of football hooliganism and the Council of Europe in the area of Conflict engage with the reality of drug use in sport. Dispute in Sport. He has been an active researcher in the area for over ten years and The role of the Sport and the Law Journal is to has an international reputation. His particular research interests include sports governance and the regulation of sports related corruption, racism in sport and the inform on current developments but also to engage construction of national identity and athlete mobility in sport. He has published widely in sports law including being lead author of Gardiner et al, Sports Law (2005, Cavendish) with these controversial issues. One strength of the 3rd ed., co-editor of Professional Sport in the European Union: Regulation and Re- Journal is to provide both theoretical and practical regulation (2000, Asser Press) (with Andrew Caiger) and author of ‘UK Sports Law’, in Hendrickx, F & Blanpain, R (eds), International Encyclopaedia of Sports Law (2005, insights to Sports Law issues in a way that both Kluwer). He is also co-editor of the International Sports Law Journal and writes a monthly column for SportBusiness International. He is a member of the Board of mutually inform each other. Directors of the International Association of Sports Law 3 Volume 12 Issue 2 Sport and the Law Journal Inhaled Beta Agonists: Ergogenic, dangerous and against the spirit of sport: Fact or fallacy?

By Dr Bruce Hamilton, MBChB, BPhEd (Dis), DTM&H, FACSP, FFSEM Sports Physician

1.0 Introduction 1.2 Asthma and Inhaled Beta Agonists Asthma is a common condition affecting up to 10% of 8 1.1 Drug Use in Sport and the Formation of the population and is characterised by intermittent the World Anti-Doping Agency wheeze, shortness of breath, chest tightness, and Drugs and other concoctions have long been utilised to persistent cough. Exercise-Induced Asthma (“EIA”) is enhance sporting performance. In the ancient Olympics, the term used to describe the transient narrowing of the the use of drugs was widespread and considered airways that follows vigorous exercise of 6-8 minutes 9, 10 legitimate. In the early half of the twentieth century, duration , resulting in symptoms during or soon after with the increased globalisation of sporting contests, exercise. EIA is now recognised as being very common, medicating with substances would often be used as a occurring in up to 23% of Olympic athletes, with a 1 legitimate training aid . Following several fatal incidents particularly high incidence in sports such as running, 11-14 involving athletes and drugs, and a change in public cross country skiing, and ice skating . It is well- opinion towards the use of drugs in sport, the recognised that asthma can impair sports performance. International Olympic Committee (IOC) instigated drug Inhaled Beta-Agonists (“IBAs”) are sympathomimetic testing and a prohibited list of drugs in 1968. In the latter agents which act to prevent the narrowing of the half of the twentieth century, both the use of drugs to airways found in EIA, by inducing relaxation of Bronchial enhance performance and the fight against their use Smooth Muscle. They are one of the most commonly 15, 16 became increasingly sophisticated. As a result, following used means of treating all forms of asthma . The the World Conference on Doping in sport in Lausanne in development of long-acting IBA medication has further February 1999, the World Anti-Doping Agency (WADA) enhanced its efficacy, by increasing the duration of its 15 was created with the aim of harmonising and effect . While there are a number of other classes of 2 intensifying the fight against doping in sport . medication that may be used to treat exercise-induced WADA has in a short space of time developed the asthma, either independently or in combination with World Anti-Doping Code (the “Code”), upon which its IBAs (for example: Mast Cell Stabilising Medication, 2 entire anti-doping programme is based , as well as Corticosteroids, Leukotriene Receptor Antagonists), IBAs 15 numerous International Standards for the technical are still recognised as a pivotal management tool . 3, 4 management of the Code and several models of best IBAs have been on the IOC’s List of Prohibited 5 practice . As a result of these developments, participants Substances since 1975. IBAs have also been included on in the World Conference on Doping in Sport, held in the WADA 2004 Prohibited List, with sufferers of asthma Copenhagen in March 2003, passed a resolution subsequently required to complete a Therapeutic Use accepting the Code as “...the basis for the fight against Exemption application prior to being permitted to utilise doping in sport throughout the world”, and encouraging IBAs in the management of their asthma. In 2005 this sporting bodies and Governments to sign up to the position will be unchanged, except that IBAs will be Code. Signatories to the Copenhagen Declaration prohibited both in- and out-of competition unless a prior 17 accept challenging fiscal and logistical responsibilities, Therapeutic Use Exemption has been granted . with failure to fulfil those responsibilities potentially The aim of this paper is to critically review both the having consequences for their participation in events inclusion of IBAs on the WADA Prohibited List and the such as the World Championships and Olympic Games Abbreviated Therapeutic Use Exemption procedure as 2 (Article 20 ). Despite this, over 490 countries and instigated by WADA in order to manage the legitimate sporting organisations have signed the Copenhagen use of IBAs. The author will contend that IBAs do not fulfil 6, 7 Declaration, including the IOC . the requirements of the WADA Code and hence should not be included in the Prohibited List. Furthermore, the

4 Sport and the Law Journal Volume 12 Issue 2

author will argue that with regard to IBAs, the Therapeutic justifiable and appropriate, according to WADA’s own Use Exemption process instigated by WADA places clear criteria. disproportionate requirements on medical practitioners and subsequently requires further rationalisation. 2.1 Inhaled Beta Agonists and the WADA 2004 Prohibited List IBAs are included on the 2004 Prohibited list (in- 2.0 The 2004 WADA Prohibited List competition) under Article S6: The Prohibited List is an annually updated WADA “All beta-2 agonists including their D- and L- publication of those substances and methods whose isomers are prohibited except formoterol, 2, 3 use is prohibited in sport ). In order for a substance to salbutamol, Salmeterol and Terbutaline are be included in this list, it is supposed to meet at least permitted by inhalation only to prevent and/or 2 two of the following criteria : treat asthma and exercise-induced 1. Medical or other scientific evidence, pharmacological asthma/bronchoconstriction. A medical effect, or experience that the substance or method notification in accordance with section 8 of the has the potential to enhance or enhances sport International Standard for Therapeutic Use 3 performance; Exemptions is required.” . 2. Medical or other scientific evidence, pharmacological effect, or experience that the use of the substance Subsequently, medical documentation in the form of a or method represents an actual or potential health Therapeutic Use Exemption (TUE) is required to be risk to the athlete; completed and accepted, in order for IBA use to be 3. WADA’s determination that the use of the substance permitted in sport to prevent asthma. Notwithstanding the or method violates the “spirit of sport” described in granting of a TUE, a urinary concentration of salbutamol the Introduction to the Code. greater than 1000ng/ml (detected either in- or out- of competition) will continue to considered an adverse Pivotal to the first two criteria is the requirement that analytical finding “... unless the athlete proves that the medical or scientific evidence be available to support the abnormal result was the consequence of the therapeutic 3 assertion of performance enhancement or health risk. As use of inhaled salbutamol” . This apparently arbitrary level discussed below, this is a very live issue in relation to IBAs. is included as levels of this nature are felt to be anabolic Whilst not wishing to debate the entire WADA Code, and unlikely to be reached via routine therapeutic inhalation 18 two key principles are relevant to the current topic. (Section 5.31 ). This latter contention has however, been 18, 19 20 Firstly, the principle of “strict liability”, whereby an successfully challenged both legally and academically , athlete has absolute responsibility for what is found in as explained further below. 2 his/her body (WADA Code, Article 2, ). So, for example, Inclusion of a substance or method on the ignorance of the contents of a supplement or “Prohibited List” implies conformity with the WADA medication will not be available as a defence. Secondly, prohibited list criteria outlined above. Clearly, it is critical if a substance is included on the Prohibited List, it is that the WADA inclusion criteria are met, in order to deemed to be performance-enhancing (Code, Article ensure fair and equitable treatment of all athletes 2 4.3.3 ); and athletes can not argue to the contrary. thereby ensuring that specific athletes are not unduly Given these two clearly asseverated principles upon disadvantaged by the WADA Code. Thus it is a which the Code and the Prohibited List are based, it is worthwhile exercise to briefly review the relevant apparent that the onus is therefore on WADA to ensure literature surrounding IBAs in order to understand the that all substances included on the list are both basis for its inclusion on the Prohibited List.

5 Volume 12 Issue 2 Sport and the Law Journal

Inhaled Beta Agonists: Ergogenic, dangerous and against the spirit of sport: Fact or fallacy?

i. Ergogenic Effects of IBA of salbutamol (which may have ergogenic effects) is While there is clear evidence that the now redundant prohibited, while inhalation of salbutamol (which does not 21, 22 Beta- Agonist Clenbuterol has an ergogenic effect , have ergogenic effects) is permitted to treat asthma (that and some evidence that orally consumed and high dose is, with a TUE), and the cut-off of 1000 ng/ml is used as a 23, 24 Beta Agonists have an ergogenic effect , there is threshold distinguisher between the two. However, the widely accepted to be no scientific or medical evidence 1000 ng/ml is a particular crude distinguisher, and a more 25-32 that inhaled IBAs have an ergogenic effect . Indeed the sophisticated approach is suggested by the work of 20 International Olympic Committee Medical Committee Berges et al. . Using a series of studies comprising both 33, 34 (IOC MC) recently published the same conclusion . healthy individuals and sufferers of asthma, the authors describe a number of relevant findings. Firstly, and casting ii. Health Risks of IBA doubt as to the validity of the 1000ng/ml urinary prohibition There have been limited studies into the potential health level, the authors found that variation in urinary volume risks of utilising IBAs, both for asthmatic and non- affected the total concentration of free salbutamol, thereby asthmatic athletes. The British National Formulary lists making urinary concentration a poor discriminator of the possible side effects as: tremor, nervous tension, inhaled versus oral intake. Additionally, while a number of peripheral vasodilatation, palpitations, tachycardia (rarely factors such as medications and underlying pathology if inhaled), muscle cramps, hypokalaemia (reduced may affect isomeric excretion, there was good evidence 35 potassium), urticaria and hypersensitivity . The clinical that the relative proportions of the ‘R’ and ‘S’ isomers of significance of these side-effects to an athlete who may salbutamol present in the urine accurately indicate whether be using very low doses of IBA is questionable. the salbutamol was inhaled or orally ingested. It is to be The most cited concern with regard to IBA use is the regretted that the Prohibited List does not even mention, 15, 36 development of tolerance and the associated possibility let alone rely upon, this technique, but instead leans back 37 of increased airway reactivity . Experience suggests, on the unreliable 1,000 ng/ml cut-off as a rough and ready however, that those athletes most at risk of inappropriate discriminator between permitted and prohibited use. use (secondary to misdiagnosis), are often infrequent On the other hand, WADA have included IBAs on their 3 users utilising salbutamol only intermittently (for example: list of “Specified Substances” , a term referring to an athlete may use one or two puffs on an inhaler prior to “substances which are particularly susceptible to competition or particularly hard training sessions), with unintentional anti-doping rules violations because of their 38 the subsequent risk of tolerance being minimal . general availability in medicinal products or which are less 37 2 Handley et al. , in a detailed review of beta-agonists, likely to be abused as doping agents” (10.3 ). describe the 50:50 mix of ‘R’ and ‘S’ isomers that make Subsequently, an adverse analytical finding may potentially 2 up all of the current generation of IBAs. Significantly, result in a reduced sanction . Thus, it appears somewhat most of the beneficial effects of IBA are a result of the paradoxical that WADA can acknowledge that IBAs are activity of the ‘R’ isomer, while most of the side effects “less likely to be abused as doping agents”, whilst and negative consequences are attributed to the ‘S’ continuing to increase the logistical demands on athletes isomer. Researchers have now been able to develop and National Governing Bodies (NGBs), in the form of TUE pure isomeric ‘R’ forms of IBA whose existence requirements, as a mechanism for permitted use. suggests that the side effects and risks of IBA will, in Given the above brief assessment, one is drawn to 37 the future, be minimised . question the inclusion of IBA on the WADA prohibited list. Inclusion of inappropriate substances and methods iii. The “Spirit of Sport” on the prohibited list will have a significant impact on The spirit of sport is a far more intangible criterion to individual athletes (in this case athletes suffering from quantify; it is defined in the WADA Code as a celebration asthma), NGBs and International Federations (IFs). Its 2 of the human spirit, body and mind . Far from being an inclusion certainly warrants further consideration. independent third criterion, the emotive, subjective “spirit of sport” is clearly both defined and heavily determined 2.2 WADA, the IOC and the Inclusion of by the preceding two criteria. It is difficult to conclude, Inhaled Beta Agonists on the Prohibited List given the lack of ergogenic effect and the low relative Prior to the formation of WADA and the development of health risks from consumption of low dose IBAs, that the WADA Code, the IOC was the world’s major anti- IBAs should be considered against the “spirit of sport”. doping body, with its own prohibited list forming the As noted above, both the mode of ingestion and total basis of anti-doping procedures throughout the world. It dose of beta agonists are of particular concern to the is worth considering the history of treatment of IBAs in WADA Code, and both have been considered in recent the Prohibited List, first by the IOC and now by WADA, 3, 18, 19 tribunal hearings . More specifically, oral consumption and a summary is set out in Table One, opposite. The

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Table One: Progress of Inhaled B-2 Agonists in the IOC and WADA Prohibited List

IOC List of Prohibited Substances Year Status Substance Class Comment 1975 Salbutamol, Terbutaline Class 1A Stimulants First added to list following concerns regarding Stimulant effect on CVS and CNS. Permitted only with prior notification from appropriate authority. 1992 Salbutamol, Terbutaline Class 1A Stimulants Salbutamol, Clenbuterol Class C Anabolic agents Incorporated following evidence that Oral Salbutamol could have anabolic 2. Other Anabolic Agents effects. Permitted by inhaler only and must be declared in writing, prior to the competition, to the relevant medical authority. 1996 Salmeterol Class 1A Stimulants Added to list for first time 1998 Salbutamol, salmeterol, terbutaline Class 1A Stimulants Permitted by inhaler only when their use is previouusly certified in writing ...and related substances by a respiratory or team physician to the relevant medical authority. Clenbuterol, fenoterol, salbutamol, salmeterol, Class C Anabolic Agents terbutaline …and related substances 2. Beta-2 Agonists Jan IC Salbutamol, salmeterol, terbutaline Class 1A Stimulants "Permitted by inhaler only to prevent and/or treat asthma and exercise- induced asthma. 2000 ...and related substances Written notification of asthma and/or exercise-induced asthma by a respiratory or team physician is necessary to the relevant medical authority." IC/OOC Bambuterol, clenbuterol, fenoterol, formoterol, Class C Anabolic Agents *Authorised as per stimulants. reproterol, Salbutamol*, salmeterol*, 2. Beta-2 Agonists For salbutamol the definition of a positive under the anabolic agent category is a terbutaline*...and related substances concentration in urine greater than 500 nanograms per millilitre. April IC Salbutamol, salmeterol, terbutaline Class 1. A Stimulants "Permitted by inhaler only to prevent and/or treat asthma and exercise-induced asthma. 2000 ...and related substances Written notification of asthma and/or exercise-induced asthma by a respiratory or team physician is necessary to the relevant medical authority." Reporting threshold of 100ng/ml in urine. IC/OOC Bambuterol, clenbuterol, fenoterol, formoterol, Class C Anabolic Agents *Authorised as per stimulants. reproterol, Salbutamol*, salmeterol*, 2. Beta-2 Agonists For salbutamol the definition of a positive under the anabolic agent category is a terbutaline* ...and related substances concentration in urine greater than 1000 nanograms per millilitre. 2001 IC Formoterol, salbutamol, salmeterol, terbutaline Class 1A Stimulants "Permitted by inhaler only to prevent and/or treat asthma and exercise-induced asthma. ...and related substances Written notification of asthma and/or exercise-induced asthma by a respiratory or team physician is necessary to the relevant medical authority prior to competition." IC/OOC Bambuterol, clenbuterol, fenoterol, formoterol, Class C Anabolic Agents *Authorised as per stimulants. For salbutamol the definition of a positive under the reproterol, salbutamol*, salmeterol*, 2. Beta-2 Agonists anabolic agent category is a concentration in urine greater than 1000 nanograms terbutaline*...and related substances per millilitre. 2003 IC Formoterol*, salbutamol*, salmeterol* Class 1A Stimulants *Permitted by inhaler only to prevent and/or treat asthma and exercise-induced asthma. and terbutaline ...and related substances b. Unnamed Written notification by a respiratory or team physician that the athlete has asthma and/or exercise-induced asthma is necessary to the relevant medical authority prior to competition. At the Olympics [sic] Games athletes who request permission to inhale a permitted beta-2 agonist, will be assessed by an independent medical panel. IC/OOC Clenbuterol, salbutamol* Class C Anabolic Agents *For salbutamol, a concentration in urine greater than 1000ng per millilitre of 2. Other Anabolic Agents non-sulphated salbutamol constitutes a doping violation. WADA Prohibited List International Standard Year Status Substance Class Comment 2004 IC/OOC Clenbuterol S4 Anabolic Agents 2. Other Anabolic Agents IC/OOC Salbutamol S6 Beta-2 Agonists Despite the granting of a TUE, when the Laboratory has reported a concentration of salbutamol (free plus glucuronide) greater than 1000ng/ml, this will be considered as an adverse analytical finding unless the athlete proves that the abnormal result was the consequence of the therapeutic use of inhaled salbutamol. IC All B-Agonists Prohibited except Salbutamol, S6. Beta-2 Agonists All beta-2 agonists including their D- and L- isomers are prohibited except that formoterol, Formoterol, Salmeterol and Terbutaline salbutamol, salmeterol and terbutaline are permitted by inhalation only to prevent and/or treat asthma and exercise-induced asthma/bronchoconstrictin. A medical notification in accordance with section 8 of the International Standard for Therapeutic Use Exemptions is required. Inhaled Beta-2 Agonists (except Clenbuterol) Specified Substances The WADA Code (10.3) states "The Prohibited List may identify specified substances which are particularly susceptible to unintentional anti-doping rule violations because of their general availability in medicinal products or which are less likely to be successfully abused as doping agents. A doping violation involving such substances may result in a reduced sanction as noted in the Code provided that the "...Athlete can establish that the Use of such a specified substance was not intended to enhance sport performance..." 2005 IC/OOC Clenbuterol S1 Anabolic Agents 2. Other Anabolic Agents, including but not limited to: IC/OOC All beta-2 agonists including their S3. Beta-2 Agonists Their use requires a Therapeutic Use Exemption Formoterol, salbutamol, D- and L-isomers are prohibited. salmeterol and terbutaline IC/OOC Formoterol, salbutamol*, salmeterol S3. Beta-2 Agonists As an exeception, formoterol, salbutamol, salmeterol ad terbutaline, when administered by and terbutaline inhalation to prevent and/or treat asthma and exercise-induced asthma/broncho- constriction require an abbreviated Therapeutic Use Exemption." *Despite the granting of a Therapeutic Use Exemption, when the Laboratory has reported a concentration of salbutamol (free plus glucuronide) greater than 1000ng/ml, this will be considered as an Adverse Analytical Finding unless the athlete proves that the abnormal result was the consequence of the therapeutic use of inhaled salbutamol. Inhaled Beta-2 Agonists (except Clenbuterol) Specified Substances "The Prohibited List may identify specified substances which are particularly susceptible to unintentional anti-doping rule violations because of their general availability in medicinal products or which are less likely to be successfully abused as doping agents." A doping violation involving such substances may result in a reduced sanction as noted in the Code provided that the "...Athlete can establish that the Use of such a specified substance was not intended to enhance sport performance..." IC: Prohibited in Competition; OOC: Prohibited out of Competition

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Inhaled Beta Agonists: Ergogenic, dangerous and against the spirit of sport: Fact or fallacy?

IOC is now the single most significant contributor to the influenced by the opinions of the IOC MC. It becomes WADA budget, contributing 8,500,000 US Dollars, or problematic, however, when one considers that in 39 50% towards the budget in 2002 . contrast to the IOC MC, which seems to have a high In May 2001, the IOC MC convened a workshop in degree of autonomy and variable degrees of 43 Lausanne, Switzerland, to review the gradual increase in accountability , WADA has very clear guidelines with number of athletes utilising IBA at the Olympics. This which it must supposedly adhere. The inclusion on workshop concluded that: WADA’s Prohibited List of substances that do not meet “...At recent Olympic Games, there had been a the criteria specified by WADA for inclusion, such as large increase in the number of athletes notifying IBAs, risks undermining the bed-rock of the entire strict the need to inhale a beta 2 agonist...” liability system on which the WADA Code is based. and “some athletes may have been misdiagnosed and 40 did not have asthma...” . 3.0 Therapeutic Use Exemption Notwithstanding the inclusion of IBAs on the Prohibited The stance of the IOC MC is supported by evidence List, WADA does recognise that IBAs are legitimately of increasing utilisation rates for IBAs in sport over required by many athletes for the management of their 16 recent years and the fact that self-reported symptoms asthma. In order to assist asthmatic athletes in the are a poor indicator as to the presence or otherwise of legitimate use of IBAs, WADA has instigated a process asthma, thereby increasing the possibility of known as Therapeutic Use Exemptions whereby “4.0 41 misdiagnosis . Some authors however, go further, ...A Therapeutic Use Exemption (TUE) may be granted suggesting that “...Anecdotally, it is clear that there are to an Athlete permitting the use of a Prohibited elite athletes, who do not have asthma, who are Substance or Prohibited Method contained in the 23 4 prescribed IBA by well-intending physicians” . Prohibited List” . Interestingly, one of the authors of this latter view is a Anti-Doping Organisations (ADOs, for example: member of the IOC MC. National Anti-Doping Organisations [NADOs], IFs or the While it is true that there has been a trend towards IOC) are required to establish TUE Committees increasing utilisation of IBAs at the Olympic Games, it is (“TUEC”) to manage and quality control a process also true that there is vast geographical variation in whereby TUE applications from elite athletes may be 2 those utilisation rates: the highest incidence of IBA appraised and approved (4.4 ). While TUE application utilisation is reported in athletes from the United forms have been standardised, the WADA Code does Kingdom, North America, Australia and New Zealand. allow each ADO to modify the application forms utilised Significantly, the geographical variation observed in IBA for TUE consideration in order to best meet their own 4 utilisation in the Olympics correlates highly with the requirements (Article 7.2 ). While not allowing any 23 prevalence of asthma in those countries . criteria to be removed from the standardised form, and As a result of this workshop, the IOC increased its thereby ensuring a minimum standard of TUE own requirements for the legitimate use of IBAs by applications, Article 7.2 clearly permits each ADO to athletes, by necessitating the inclusion of clear clinical establish its own ‘levels of proof’ when it comes to TUE and laboratory standards in a TUE application, in order approval. In this single action it can be seen that rather for a TUE to be granted. . Presumably, the aim was a than harmonise and standardise the anti-doping reduction in the number of inappropriate IBA users, process, WADA has effectively created a process although this is not clearly set out in formal whereby no direct comparison may be made between 16, 33, 40 communications . As a result of this lack of clarity, the TUEs issued by different ADOs. With each of the some authors are beginning to question the rationale for ADOs able to establish its own criteria, it is unclear how 34 the continued inclusion of IBAs on the Prohibited List . this is going to add harmony to the anti-doping cause. Interestingly, the proportion of athletes utilising asthma medication competing in the British Olympic Team 3.1 Inhaled Beta Agonists and the Therapeutic increased from 16.5% in Sydney to 21% in Athens, Use Exemption Application Process suggesting that the IOC’s new requirements may not The WADA TUE Standard Application Form requires the 42 be having the desired effect . reporting physician to include a significant amount of Given the critical role that the IOC MC has previously clinical and laboratory detail, thereby enabling a TUEC to played in the fight against drugs, the fiscal relationship make an appropriate and informed decision. As between the IOC and WADA, and the importance of the mentioned above, this application form may also be Olympics to WADA, it is no surprise, and not entirely modified as required. inappropriate, that WADA should be significantly In contrast however, when considering IBAs and non-

8 Sport and the Law Journal Volume 12 Issue 2

systemic Glucocorticoids (which will not be discussed in ADO TUEC. Given that ADOs will be establishing this paper, but as to which similar issues arise), a TUECs throughout the world, with potentially process known as the “Abbreviated Therapeutic Use independent and perhaps contradictory criteria, is there 4 Exemption Application Process” has been instigated . any possible way in which the ADOs can expect to be This is apparently because “8.1 It is acknowledged that granting or refusing ATUEs on the basis of equivalent some substances included on the List of Prohibited standards? Clearly, this is not a harmonised and Substances are used to treat medical conditions standardised system and if WADA is to be the ‘gold 4 frequently encountered in the Athlete population” . The standard’, why should there be any need for individual latter is an interesting concession on the part of WADA, sports or ADOs to add their own requirements to the recognising that asthma is a common occurrence in the WADA ATUE? athletic population, contrasting the stance of the IOC To add a further source of potential confusion, Article MC, which appears to take the position that the 15.4 of the WADA Code states that “...subject to the frequency of asthma in elite sport is excessive and one right to appeal provided in article 13, the testing, TUE of the major indications for increased vigilance. and hearing results or other final adjudications of any signatory which are consistent with the code and are 3.2 The Abbreviated Therapeutic within that signatory’s authority, shall be recognised and Use Exemption be respected by all other Signatories...”. As a result, an There are two important features of the Abbreviated TUE ATUE approved by (say) a TUEC convened by UK Sport (ATUE) which distinguish it from the Standard TUE. Firstly, will have to be recognised by other ADOs such as the approval for the Abbreviated TUE is effective immediately IOC, even if the approval standards may differ. upon receipt of a completed notification form by the While there is no singular standard for ATUEs, the appropriate ADO. Secondly, the WADA Abbreviated TUE potential for inconsistency and inequity is immense. application does not require the inclusion of medical Rather than harmonising and strengthening the anti- 4 investigations . With regard to IBAs, this latter feature doping process, the ATUE process established by the distinguishes the WADA ATUE from the ATUEs of ADOs WADA Code is disharmonious and unmanageable in its such as the IOC, the International Association of Athletics current format. Federations (IAAF) and UK Sport. Each of these 4 organisations has taken advantage of Article 7.2 to 3.3 Impact of the ATUE Requirements upon require stringent clinical and laboratory criteria to be fulfilled National Governing Bodies and documented in the ATUE application, in order for an The spirit and intent of the unmodified WADA ATUE ATUE to be approved. These modifications have occurred form allows for the rapid processing of a large number as a result of ADOs recognising the limitations of the of ATUE applications by TUECs. Unfortunately it does WADA ATUE application, in that an ATUE Application which not provide the TUEC with the appropriate information does not require the inclusion of medical information with which to make an informed decision. As noted provides no basis for a above, the result of this is that ADOs such as the IOC The WADA TUE TUEC to either accept or and IAAF have modified the ATUE, including the Standard decline an application. requirement for documentary evidence of their asthma. ADOs who have modified This requirement will however, have a significant impact Application Form the ATUE Application form upon NGBs, as they attempt to ensure that their requires the to require the inclusion of athletes have the appropriate documentation when laboratory results and applying for an ATUE for an IBA. reporting physician medical information are in UK Athletics has approximately 400 athletes on its 44 a much stronger position Out-of-Competition register . With up to 23% of athletes to include a 13 to decide if an ATUE potentially suffering from asthma , this equates to over significant amount application is appropriate 80 athletes requiring documentary evidence of their of clinical and or not. asthma, prior to having their ATUE form approved by the Unfortunately, as a IAAF TUEC. It is generally recognised that most athletes laboratory detail, result of Article 7.2, a suffer from subtle, exercise induced asthma, for which situation may arise in simple spirometry available in many sports medicine thereby enabling a 11, 38 which an approved ATUE practices will not provide adequate evidence . TUEC to make an application to any ADO Recognising this, the preferred IAAF investigation is the appropriate and TUEC may not necessarily Eucapnic Voluntary Hyperventilation (EVH) test, which at meet the standards and this stage is only able to be performed in a single informed decision requirements of another research centre in the United Kingdom. With 9 Volume 12 Issue 2 Sport and the Law Journal

Inhaled Beta Agonists: Ergogenic, dangerous and against the spirit of sport: Fact or fallacy?

approximately 10 000 athletes on the UK Sport Out of respectively) following an 84 minute game of rugby in the 45 Competition Register , corresponding to potentially over European Rugby Cup competition. Although he was able 2000 asthmatic athletes, it can be seen that the demand to demonstrate that he had been prescribed salbutamol on a single testing facility (a single test, without follow-up to alleviate his asthma, he had not made the proper and assuming a positive result may take approximately filings with ERC, and in any event the levels were so high 40 minutes) will be limiting, if not logistically improbable. that therapeutic use was doubted. The first instance Most NGBs will employ a single chief medical officer tribunal therefore upheld the doping charges brought (CMO) on a part time basis with the responsibility of against him for use of a Prohibited Substance, and ensuring the health and injury free status of their athletes, rejected his contention of therapeutic use. On appeal, monitoring the anti-doping policies including however, his contention of therapeutic use was upheld, documentation and education, and the general essentially as a result of further scientific analysis of the development of medical policies. The new ATUE urine sample, based on the isomer research alluded to 20 requirements for an NGB such as UK Athletics, will require earlier . The R:S isomer analysis found that Sheahan’s the CMO to ensure that all athletes, prior to competition, salbutamol ratio was consistent with inhaled salbutamol, have the correct documentation, to the standard of proof thereby obliging the tribunal to accept that salbutamol required by its own IF, in this case the IAAF. In the past, levels of 1000 ng/ml in the urine can be achieved with an the level of proof required has been based on the word of inhaled therapeutic dose. Furthermore, it was accepted a Registered Medical Practitioner, requiring a minimum of that inhaled salbutamol does not have an ergogenic paperwork and time. It is clear that the increased logistical effect. As a result, his sanction was reduced from two and temporal demands placed upon the NGB CMO by the years to three months, based on his failure to notify 18, 19 modifications imposed upon the WADA ATUE application properly his therapeutic use of salbutamol . form by independent ADOs such as the IAAF, will have a While both the first instance tribunal and the appeal significant impact upon the ability of CMOs to perform tribunal applied the September 2001 IOC List of other critical activities, including drug education and health Prohibited Classes of Substances and Prohibited 38 promotion . This should be of great concern to WADA. Methods, their findings would appear to have profound Just as one must ask if a sanction is proportionate to implications for the current WADA Code. As noted the doping offence, one can equally question whether the above, under the WADA Code, an in- or out-of- logistical requirements of the ATUE for IBAs are competition urinary level of salbutamol greater than proportionate to the rationale for the inclusion of IBAs on 1000ng/ml is considered an adverse analytical finding, the Prohibited List. Clearly from the preceding argument, due to its implied anabolic effect, unless “...the athlete it would appear that the medical and scientific justification proves that the abnormal result was the consequence of 3 of IBA inclusion on the Prohibited List is at best weak and the therapeutic use of inhaled salbutamol” . Significantly, at worst completely inappropriate and not in conformity on the basis of expert scientific opinion, the tribunal with WADA’s own guidelines. By comparison, the impact agreed that levels greater than 1000ng/ml could be upon an NGB medical officer as illustrated above is achieved by inhalation, casting doubt on the scientific immense. In a world of severely limited resources both in validity of the current WADA Prohibited List. As was terms of time and in terms of medical and scientific evident from this tribunal finding, the failure of WADA to expertise, this will impact heavily upon the ability of NGBs conform to the highest scientific standards may result in to counter the illegitimate use of more sinister drugs such both false positive analytical findings and subsequent as Anabolic Steroids, Erythropoietin and their newer and charges being pursued. Despite this tribunal finding, 46 increasingly sophisticated derivatives. The author would similar cases elsewhere and enhanced laboratory 20 argue that this is an unfortunate position in which NGBs techniques , WADA has failed to include guidelines find themselves and which, by virtue of the time and recommending the utilisation of isomers in the logistical demands placed upon NGB anti-doping and assessment of those urine samples which contain levels medical staff, will ultimately impair the ability of NGBs to of salbutamol greater than 1000 ng/ml in either its 2004 3, 17, 47 assist in the fight against drug use in sport. or 2005 Prohibited List and Laboratory Standards . It would appear more rational for WADA to specify those isomeric findings that are consistent with 4.0 ‘European Rugby Cup Limited permitted use of beta-agonists, and those that are versus Frankie Sheahan’: Implications consistent with prohibited use of beta-agonists, rather for the WADA code than relying solely on an arbitrary urinary salbutamol Frankie Sheahan is an Irish rugby player who was level, prior to declaring an adverse analytical finding. discovered to have elevated levels of urinary salbutamol The author would recommend an approach whereby (1644 ng/ml and 1764 ng/ml in the ‘A’ and ‘B’ samples isomeric assessment of those samples found to contain

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1. Waddington I. Sport, Health and Drugs: a critical sociological perspective. 1st ed. London: E & FN greater than 1000 ng/ml of salbutamol is mandatory. In Spoon; 2000. 2. WADA. The World Anti-Doping Code: WADA; 2003. Version 3.0. so doing, the necessity for evidence-based TUEs (as 3. WADA. The World Anti-Doping Code: The 2004 Prohibited List. International Standard. Montreal: WADA; 2003. developed by ADOs such as the IAAF and IOC) would 4. WADA. The World Anti-Doping Code: International Standard for Therapeutic Use Exemptions: be negated, as it would not be inhaled Beta-Agonists WADA; 2003. September 2003. 5. WADA. Models of Best Practice for International Federations: WADA; July 2003. that would be prohibited, but rather its oral and 6. Copenhagen Declaration on Anti-Doping in Sport. In: World Conference on Doping in Sport; 2003; Copenhagen, Denmark; 2003. intravenous forms. Subsequently, those athletes 7. World Conference on Doping in Sport Resolution. In: World Conference on Doping in Sport; 2003; wishing to gain an unfair advantage from using oral or Copenhagen, Denmark; 2003. 8. McFadden E. Asthma. In: Wilson J, Braunwald E, Isselbacher K, Petersdorf R, Martin J, Fauci A, et intravenous beta-agonists would be detected, those al., editors. Harrison’s Principles of Internal Medicine. 12th ed. New York: McGraw Hill; 1991. p. 1047 - 1053. asthmatic athletes wishing legitimately to utilise IBAs 9. Anderson SD, Holzer K. Exercise-induced asthma: is it the right diagnosis in elite athletes? Journal of Allergy and Clinical Immunology 2000;106(3):419-28. would not be disadvantaged, and NGB Medical Officers 10. Spooner C, Rowe BH, Saunders LD. Nedocromil sodium in the treatment of exercise-induced would be able to concentrate on those doping issues asthma: a meta-analysis. European Respiratory Journal 2000;16(1):30-7. 11. Weiler J, Ryan E. Asthma in United States Olympic athletes who participated in the 1998 Olympic worthy of inclusion on the WADA Prohibited List. winter games. Journal of Allergy and Clinical Immunology 2000;106(2):267-271. 12. Provost-Craig M, Arbour K, Sestili D, Chabalko J, Ekinci E. The incidence of exercise-induced bronchospasm in competitive figure skaters. Journal of Asthma 1996;33(1):67-71. 13. Wilber RL, Rundell KW, Szmedra L, Jenkinson DM, IM J, Drake SD. Incidence of exercise-induced bronchospasm in Olympic winter sport athletes. Medicine and Science in Sport and Exercise 5.0 Conclusion 2000;32(4):732-737. 14. Schoene R, Giboney K, Schimmel C, Hagen J, Robinson J, Schoene R, et al. Spirometry and ariway From the preceding discussion it is clear that the reactivity in slite track and field athletes. Clinical Journal of Sport Medicine 1997;7(4):257-261. 15. Price JF. Choices of therapy for exercise-induced asthma in children. Allergy 2001;56 Suppl 66:12-7. inclusion of IBA in the WADA Prohibited List appears at 16. Anderson SD, Fitch KD, Perry CP, Sue-Chu M, Crapo R, McKenzie DC, et al. Responses to bronchial odds with WADA’s own stated methodological practice. challenge submitted for approval to use inhaled B2-agonists before an event at the 2002 winter Olympics. Journal of Allergy and Clinical Immunology 2003;111(1):45-50. The Abbreviated TUE system instigated to cope with 17. WADA. The World Anti-Doping Code. The 2005 Prohibited List. International Standard. Montreal: World Anti-Doping Agency; 2005. the volume of legitimate IBA users has been 18. European Rugby Cup Limited vs Frankie Sheahan. In: Decision of the ERC Judicial Tribunal; 2003. undermined by the inclusion and application of Article 19. European Rugby Cup Limited vs Frankie Sheahan Appeal. In: Decision of the ERC Appeal Tribunal; 2003. 7.2, creating the potential for inconsistency and 20. Berges R, Segura J, Ventura R, Fitch KD, Morton AR, Farre M, et al. Discrimination of prohibited oral use of salbutamol from authorized inhaled asthma treatment. Clin Chem 2000;46(9):1365-75. disharmony between Anti-Doping Organisations. The 21. Ingalls CP, Barnes WS, Smith SB. Interaction between clenbuterol and run training: effects on exercise performance and MLC isoform content. J Appl Physiol 1996;80(3):795-801. author would recommend that WADA consider both the 22. Prather ID, Brown DE, North P, Wilson JR. Clenbuterol: a substitute for anabolic steroids? Med Sci removal of IBAs from the Prohibited List, and Article 7.2 Sports Exerc 1995;27(8):1118-21. 23. McKenzie DC, Stewart IB, Fitch KD. The asthmatic athlete, inhaled beta agonists, and performance. from the International Standard for Therapeutic Use Clin J Sport Med 2002;12(4):225-8. 24. Van Baak MA, Mayer LH, Kempinski RE, Hartgens F. Effect of salbutamol on muscle strength and Exemptions. In addition, the author recommends that endurance performance in nonasthmatic men. Med Sci Sports Exerc 2000;32(7):1300-6. all screened urine samples which return a level of 25. Stewart IB, Labreche JM, McKenzie DC. Acute formoterol administration has no ergogenic effect in nonasthmatic athletes. Med Sci Sports Exerc 2002;34(2):213-7. salbutamol greater than 1000 ng/ml be further assessed 26. Carlsen KH, Ingjer F, Kirkegaard H, Thyness B. The effect of inhaled salbutamol and salmeterol on lung function and endurance performance in healthy well-trained athletes. Scand J Med Sci Sports using isomer ratios prior to the reporting of an adverse 1997;7(3):160-5. 27. Goubault C, Perault MC, Leleu E, Bouquet S, Legros P, Vandel B, et al. Effects of inhaled salbutamol analytical finding. This should be incorporated into in exercising non-asthmatic athletes. Thorax 2001;56(9):675-9. future WADA Prohibited Lists and Laboratory Standards. 28. Morton AR, Joyce K, Papalia SM, Carroll NG, Fitch KD. Is salmeterol ergogenic? Clin J Sport Med 1996;6(4):220-5. While the altruistic intentions of WADA and the IOC 29. Meeuwisse WH, McKenzie DC, Hopkins SR, Road JD. The effect of salbutamol on performance in elite nonasthmatic athletes. Med Sci Sports Exerc 1992;24(10):1161-6. MC with regard to IBAs may in many ways be admired, 30. Sue-Chu M, Sandsund M, Helgerud J, Reinertsen RE, Bjermer L. Salmeterol and physical the administrative, fiscal and logistical difficulties that performance at -15 degrees C in highly trained nonasthmatic cross-country skiers. Scand J Med Sci Sports 1999;9(1):48-52. inclusion of IBAs has created may have more far 31. Schmidt A, Diamant B, Bundgaard A, Madsen PL. Ergogenic effect of inhaled beta 2-agonists in asthmatics. Int J Sports Med 1988;9(5):338-40. reaching and sinister consequences downstream. 32. Heir T, Stemshaug H. Salbutamol and high-intensity treadmill running in nonasthmatic highly conditioned athletes. Scand J Med Sci Sports 1995;5(4):231-6. 33. Schamasch P. Beta2 adrenoceptor agonists and the Olympic Winter Games in salt Lake City. In: http://multimedia.olympic.org/pdf/en_report_20.pdf; 2001. 34. Weiler J. Why must Olympic athletes prove that they have asthma to be permitted to take inhaled B2-agonists? Journal of Allergy and Clinical Immunology 2003;111(1):36-37. 35. BMA. British National Formulary; 1999. 36. Edelman JM, Turpin JA, Bronsky EA, Grossman J, Kemp JP, Ghannam AF, et al. Oral montelukast compared with inhaled salmeterol to prevent exercise-induced bronchoconstriction. A randomized, double-blind trial. Exercise Study Group. Annals of Internal Medicine 2000;132(2):97-104. 37. Handley DA, Anderson AJ, Koester J, Snider ME. New millennium bronchodilators for asthma: single-isomer beta agonists. Curr Opin Pulm Med 2000;6(1):43-9. 38. Hamilton B. Personal Communication with Dr Bryan English, Chief Medical Officer UK: Athletics. In. Birmingham; 2004. 39. WADA. Annual Report 2002. Montreal, Canada: World Anti-Doping Agency; 2002. 40. Schamasch P. Beta2 Adrenoceptor agonists and the Olympic Games in Athens. In: http://multimedia.olympic.org/pdf/en_report_732.pdf; 2003. 41. Rundell KW, Im J, Mayers LB, Wilber RL, Szmedra L, Schmitz HR. Self-reported symptoms and exercise-induced asthma in the elite athlete. Med Sci Sports Exerc 2001;33(2):208-13. 42. Budget R. Report on Medical Services for Team GB at the 2004 Athens Games: BOA; 2004. 43. Jennings A. The New Lords of the Rings. First ed. London: Simon And Schuster Ltd; 1996. 44. Hamilton B. Personal Communication with Mr D Herbert, UK: Athletics Anti-Doping Coordinator. In: Hamilton B, editor. Birmingham, UK; 2004. 45. Hamilton B. Personal Communication with Michelle Verrokken, Director UK Sport Anti-Doping Agency. In. London; 2003. 46. ASDA. Media Releases: Medical committee supports athlete rights. In: http://asda.org.au/media/releases/medical.htm; 2002. 47. WADA. The World Anti-Doping Code. International Standard for Laboratories. Version 4. Montreal: World Anti-Doping Agency; 2004 August 2004.

11 Volume 12 Issue 2 Sport and the Law Journal Anti-doping policy after The Human Rights Act: Is mandatory blood testing compatible with Article 8 of the ECHR?

By Wendy Hiscox, PhD Research Fellow in Bioethics (St Mary’s College, London)

Introduction control. There are, undeniably, patent advantages of The use of performance enhancing drugs is conspicuous blood testing. Some of the known advantages include: throughout the history of sport. Estimates of current drug the procedure for sample collection is relatively rapid; it is use among elite athletes vary considerably. Many a minimal requirement for the detection of homologous observers, however, believe doping has reached (infusion of whole blood or blood products from another 1 “epidemic” proportions. While drug use to enhance person) blood doping; it provides the best medium for performance appeared to have been tacitly accepted detecting autologous blood doping (i.e. the use of EPO or within the international sporting community prior to the one’s own blood that was previously withdrawn and 2 1960s, there now seems an international consensus that stored); it reduces the possibility of sample manipulation; robust doping control is essential. Indeed, the fight against and it provides advantages in identifying the presence of 10 doping in sport has noticeably intensified throughout the certain peptide hormones such as rHGH or rIGF-1. world, culminating in the World Conference on Doping in However, compulsory blood testing policies present 3 11 Sport in March 2004 in Copenhagen. obvious legal concerns, some of which have been Doping not only puts an athlete’s health and safety at brought sharply into focus with the passage of the risk, but it undermines the spirit and essence of sport. Human Rights Act 1998 (‘HRA’), which came into force 12 Anti-doping policies seek to safeguard what is on 2 October 2000. The HRA incorporated into English inherently valuable about sport. This intrinsic value is law the fundamental rights and freedoms safeguarded often referred to as ‘the spirit of sport’; it is the essence by the European Convention on Human Rights 1950 of Olympism; it is how we play true. The spirit of sport (“ECHR”), making human rights issues justiciable in 13 is the celebration of the human spirit, body and mind, English courts for the first time. As a result, courts now and is characterised by the following values: ethics, fair are obliged to construe legislation as far as possible as play and honesty; health; excellence in performance; being compatible with the ECHR, and public authorities character and education; fun and joy; teamwork; similarly have a duty to act in a manner which is 14 dedication and commitment; respect for rules and laws; compatible with the rights set out in the ECHR. respect for self and other participants; courage; and It remains to be seen whether the incorporation of 4 community and solidarity. the ECHR into British law will have an impact on sport 15 The introduction of blood testing for the first time at generally, or whether, more specifically, it will call into the 2000 Olympics in Sydney was considered to be a question the legitimacy of mandatory blood testing for 5 “breakthrough in the anti-doping battle.” Until the sports competitors. There do seem to be several 16 Sydney Games, drug screening at the Summer Olympics possible Convention rights implicated in this context. 6 had been limited to urine testing. There are, however, This paper, however, restricts its focus to a consideration some drugs – including the peptide hormones such as of the ECHR’s Article 8 implications of mandatory blood erythropoietin (EPO) and human growth hormone – “for testing in sport: are the two compatible? which establishing a reliable urine test has proven a 7 major obstacle.” In all likelihood, blood testing will I. Article 8 of the ECHR: Right to Respect for 8 become widely used as a primary test in sport. Indeed, Private and Family Life there appears to be an international consensus emerging Article 8 provides: “1. Everyone has the right to respect that blood sampling and testing for doping control is for his private and family life, his home and his 9 now “viable, dependable and a necessary element” of correspondence. There shall be no interference by a any comprehensive anti-doping programme. public authority with the exercise of this right except The crucial issue, however, concerns whether blood such as is in accordance with the law and is necessary testing is absolutely necessary for effective doping in a democratic society in the interests of national

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security, public safety or the economic well-being of the bodies, and as such are not currently amenable to 26 country, for the prevention of disorder or crime, for the judicial review. The Courts are not, however, bound by 27 protection of health or morals, or for the protection of the judicial review precedents in applying the HRA. the rights and freedoms of others.” Moreover, the functions of sports bodies do evidently The scope of the privacy rights covered by the article impact on the public, and this feature may bring sports 17 28 is broad. Indeed, Article 8 has been said to cover such bodies within the scope of the HRA. There seems a 18 diverse interests as: the ‘right to be let alone;’ an persuasive argument that sports governing bodies are 19 29 individual’s dignity or moral integrity; and the control of bound by the provisions of the HRA. 20 personal information; to name but a few. In order for a This view is strengthened by the remarks made by particular individual to mount a human rights challenge the Rt. Hon Jack Straw MP to the Standing Committee under Article 8, the body under challenge must be a during the legislative debates on the Human Rights Bill. ‘public authority,’ and the impugned action of the public Referring to the Jockey Club as one body which could authority must be incompatible with the individual’s be regarded as a ‘quasi public authority’ for the 21 Convention right. purposes of the new legislation, Mr Straw observed: This is not, however, the end of the investigation. “There will be occasions – it is the nature of British Article 8(2) sets out the grounds for justifying an society – on which various institutions that are private in interference with an individual’s privacy rights. Thus, even terms of their legal personality carry out public functions where it has been shown in a particular case that a public ... I would suggest that it ... includes the Jockey Club ... authority has failed to respect the privacy of an individual, The Jockey Club is a curious body: it is entirely private, there remains a second stage of inquiry – namely, whether but exercises public functions in some respects, and to such failure is justified as being ‘in accordance with the those extents, but to no other, it would be regarded as 30 law,’ ‘for a legitimate aim,’ and ‘necessary in a democratic falling within [this classification]”. 22 society.’ The test for necessity as contemplated by the For the purposes of this analysis, it will therefore be section involves determining whether there is a ‘pressing assumed that sporting bodies are bound by the 31 social need’ for the interference, as well as deciding provisions of the HRA. whether there is proportionality between the means 23 used and the legitimate aim pursued. III. Article 8(1) – A Prima Facie Interference? The legality of mandatory blood testing in the sporting II. Threshold Issue: Are Sports Governing context has not been specifically adjudicated upon in 32 Bodies Subject to the HRA? the English courts. However, it is well established in As a threshold matter, whether or not sports governing European case law in related areas that ‘private life’ bodies will be deemed to be subject to the provisions covers the physical and moral integrity of the person. 24 of the HRA remains to be seen. The HRA expressly Moreover, individuals have the right not to be forced to binds ‘public authorities’, making it unlawful for them to undergo mandatory physical interventions, including 25 33 34 act incompatibly with Convention rights. Therefore, the blood tests and urine tests. Although there are clear preliminary hurdle facing an athlete hoping to sustain an factual differences, the cases could nonetheless have 35 Article 8 challenge against a particular sports governing implications within the sporting context. body is whether the body involved can be adjudged to Could an athlete who is required to give a blood be a ‘public authority’. sample as part of an anti-doping policy conceivably 36 In English case law determining the proper claim an interference with his or her Article 8 rights? mechanism for challenging the actions of sports Any sort of compulsory medical examination would governing bodies, sports bodies are considered ‘private’ appear to constitute a prima facie infringement of an

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Anti-doping policy after The Human Rights Act: Is mandatory blood testing compatible with Article 8 of the ECHR?

45 individual’s right to privacy. Whilst there is no case law consider reasonable is infringed. directly on point in the sporting context in this country, It has long been recognised in American there is a substantial body of case law which considers jurisprudence that “compelled intrusion into the body 46 the constitutionality of random drug testing policies in for blood to be analysed” must be deemed a Fourth various factual contexts in the United States. For the Amendment search. Emphasising that compulsory purposes of the analysis here, some instructive blood testing compromises bodily integrity, courts analogies may therefore be drawn from the American consistently have concluded that an intrusion beneath constitutional position of mandatory drug testing. an individual’s skin, coupled with subsequent chemical However, it first bears considering whether for this analysis of any samples obtained, is an invasion of the context specific inquiry there is any distinction to be individual’s privacy, and thus a search implicating the 47 drawn between urinalysis and blood testing. Beloff & Fourth Amendment. Beloff argue that a “clear distinction” exists between In Canada, section 8 of the Canadian Charter of Rights 48 the two on the basis that the former (urinalysis) and Freedoms similarly has been found to guarantee a “requires no violation of an athlete’s body, in effect only reasonable expectation of privacy in one’s own bodily sampling waste products,” whilst the latter (blood fluids. The Canadian Supreme Court has stressed that 37 testing) does. The collection of blood certainly seems the right to privacy with respect to “physical integrity, a more invasive procedure, and therefore harder to including [one’s own] bodily fluids, ranks high among the 49 justify on an Article 8 analysis. matters receiving constitutional protection.” However, it could be argued that any distinction From these authorities (albeit from other between the two tests is one of ‘form’ rather than jurisdictions), it may be reasonable to conclude that anti- 38 ‘substance’. No distinction is drawn in Canadian courts, doping policies which require an athlete to submit to a and, similarly, courts in the United States have consistently compulsory blood test implicate the athlete’s privacy concluded that the process of urine collection and testing interests, and therefore trigger the Article 8 analysis. equally implicates concerns about bodily integrity, and that However, this is not determinative of the issue. The right an athlete has a right to privacy with regards to urinalysis. to private life under Article 8(1) is not absolute, but 39 For example, in Schaill v Tippecanoe the Seventh Circuit exists prima facie and may be derogated from where found a high expectation of privacy with regards to justified in accordance with the matters set out in Article urination, and emphasised that the fact that urine is 8(2). Thus whether or not compulsory blood testing voluntarily discharged from the body and treated as a schemes pass muster under the HRA will likely hinge on waste product does not eliminate the expectation of their being brought within the Article 8(2) exceptions. 40 privacy which an individual possesses in his or her urine. Moreover, the United States Supreme Court IV. Article 8(2) – Justification? described the compelled collection and testing of urine Once the engagement of Article 8(1) has been established, as “particularly destructive of privacy and offensive to it falls to the particular sporting body to demonstrate that personal dignity,” and recognised that although the such interference was justified under Article 8(2). It is collection and testing process does not entail any here that the essence of the debate takes shape. intrusion into the body, it nonetheless clearly “intrudes As in the United States, where the state may upon expectations of privacy that society has long interfere with an individual’s Fourth Amendment 41 50 recognised as reasonable.” In any event, at least interests if the state establishes “reasonableness,” an compulsory blood testing requires the violation of an anti-doping policy will withstand scrutiny if it can be 42 individual’s body and, crucially, amounts to a battery if justified by the particular sporting body under the Article done without lawful excuse – a fact explicitly noted by 8(2) exceptions. 43 English, Canadian and American domestic courts. Although there is no case law (domestic or European) Case law from other jurisdictions provides further directly on point in the sporting context, Parliament in insight. In the United States, the Fourth Amendment of this country has expressly provided for the compulsory the Constitution protects the right of the individual “to collection of blood samples in specific contexts for the 51 be secure in their person ... against unreasonable purposes of road traffic and family legislation. searches and seizures” and that this right shall not be There have, too, been several decisions by the 44 infringed without probable cause. In cases where European Commission in related areas which provide 52 athletes are compulsorily drug tested, the Fourth additional guidance. For example, in X v The 53 Amendment protections against unreasonable searches Netherlands, the Commission found that a blood and seizures are engaged. A “search” occurs within the sample taken in order to ascertain the amount of alcohol meaning of the Fourth Amendment when an in the individual’s bloodstream for the purposes of road expectation of privacy that society is prepared to traffic legislation did not contravene Article 8 on the

14 Sport and the Law Journal Volume 12 Issue 2

64 basis that “the infringement upon the privacy of the legitimate governmental interests.” The state interest individual was justified by the need to protect the rights must be important enough to justify the particular 54 of others.” A blood sample taken in order to establish search at hand, in light of other factors which show the 55 paternity was justified on the same basis in X v Austria. search to be relatively intrusive upon a genuine 65 American courts have held in similar contexts that expectation of privacy. blood extraction without a warrant aimed at detecting There are four factors to be balanced in evaluating intoxication in motorists suspected of impaired driving is constitutionality: (1) the nature of the privacy interest on 56 constitutionally permissible. which the search intruded; (2) the nature and character Would the taking of a blood sample for the purposes of the intrusion; (3) the nature and immediacy of the of an anti-doping policy be justifiable on comparable governmental interest at issue; and (4) the efficacy of grounds? Beloff and Beloff suggest it “seems likely” the scheme for meeting that concern.66 Some of the that compulsory blood testing of athletes could be factors weighed in the balance in the American case justified on the basis of ‘the protection of health or law may prove equally relevant for the purposes of an 67 morals’ or ‘the protection of the rights and freedoms of Article 8 analysis. 57 others’ in particular. Boyes, however, believes that the Perhaps surprisingly, the United States Supreme Court matter “remains questionable,” and notes that the has found repeatedly that the extraction of blood, Strasbourg institutions have been particularly keen to although clearly qualifying as a Fourth Amendment 68 see that any infringement upon the rights protected search, is “minimally intrusive” when weighed against a meet the Convention requirement of being ‘necessary compelling government interest. Similarly, the Court has in a democratic society’ and that their interpretation of concluded that the invasion of privacy occasioned by the 58 this principle has been particularly restrictive. collection of samples for urinalysis is, on balance, “not 69 Nonetheless, a sporting body would likely have little significant.” Factually, it is the latter body of case law difficulty in identifying a ‘legitimate aim’ in relation to its which is particularly relevant to the sporting context, and particular anti-doping policy. Seemingly without therefore warrants further analysis here. exception, anti-doping measures have as their stated American courts have in recent years been called upon objectives: the preservation of the well-being of sport, to determine the constitutionality of certain mandatory the preservation of the integrity of competition, and drug testing programs initiated in high schools nationwide 59 ensuring the health of athletes. It seems beyond doubt in response to perceived drug use by their students – by that these are all laudable and legitimate purposes student athletes in particular. The Courts have, after designed either ‘to protect health or morals’ or ‘the balancing the governmental interests against the rights and freedoms of others’, and would be deemed individual’s privacy interests, consistently upheld the to be so for the purposes of the HRA. testing programs on the basis that they constitute However, the “pursuit of a legitimate objective” is ‘reasonably effective’ means of addressing schools’ not by itself sufficient to justify an interference with an legitimate concerns in providing fair competition, individual’s Article 8 rights. Rather, any such limitation protecting the health and well-being of athletes, and 70 must be “proportionate to the legitimate aim deterring and detecting student drug use. The courts 60 pursued.” It is possible to glean some insight on the have identified a number of determinative factors. For issue of proportionality from the substantial body of example, in Vernonia v Acton, the Supreme Court European case law on the meaning of the term in emphasised that student athletes have a “reduced 61 relation to the EC Free Movement rules. In this expectation of privacy” on the basis that school sports are context, in determining whether a restriction is “voluntary” and “require ‘suiting up’ before each practice 71 proportionate the court will consider whether: the or event, and showering and changing afterwards.” 72 restriction is an appropriate method for the attainment Similarly, in Brennan v Board of Trustees, a of a legitimate objective; the means employed are mandatory urine testing scheme was upheld on the limited to what is necessary for the attainment of the basis that any invasion on the athletes’ privacy was legitimate objective; and the disadvantages caused or reasonable considering the diminished expectation of restrictions imposed are unacceptable given the privacy in the context of intercollegiate sports and there 62 objective pursued. being a significant interest by the state university and American jurisprudence similarly is helpful, where NCAA [namely, in ensuring fair competition in the ultimate measure of constitutionality under the intercollegiate sports as well as in protecting the health 63 Fourth Amendment is “reasonableness.” Whether a and safety of student-athletes] that outweighs the particular search satisfies the reasonableness standard relatively small compromise of privacy under the 73 “is judged by balancing its intrusion on the individual’s circumstances. Fourth Amendment interests against its promotion of The “degree of intrusion” on an individual’s privacy

15 Volume 12 Issue 2 Sport and the Law Journal

Anti-doping policy after The Human Rights Act: Is mandatory blood testing compatible with Article 8 of the ECHR?

1 Michael Bahrke, ‘The Future of Performance-Enhancing Substances in Sport’, (2002) 30 The caused by sample collection may “depend upon the Physician and Sports Medicine 1. See also, ‘A history of international anti-doping initiatives’, at www.asda.org.au. ‘Doping’ is defined in the Olympic Movement Anti-Doping Code, Ch.II, Art. I, as manner in which production of the ... sample is “the use of an expedient substance or method which is potentially harmful to athletes’ health 74 and/or capable of enhancing their performance, or the presence in the athlete’s body of a monitored,” and the collection method may therefore prohibited substance ....” As early as school, some athletes use drugs to enhance their be a significant factor in considering whether a testing performance, whether at the urging of coaches, peers, or based on an individual desire to excel. See Charles Knapp, ‘Drug Testing and the Student Athlete’, (1990) 76 Iowa L.R. 107. See also, Brian scheme is justified under the HRA. Indeed, dicta in Lee, ‘Drug Testing and the Confused Athlete: A Look at the Differing Athletic Drug Testing Programs in High School, College and the Olympics’, (2001) 3 Florida Coastal LJ 91. some of the American case law alludes to drug-testing 2 ‘A history of international anti-doping initiatives’, ibid. The impact of anti-doping programs was procedures that would tend to increase the likelihood of relatively minimal until the televised death of cyclist Tommy Simpson (due to the illegal taking of 75 amphetamines) in the 1967 Tour de France. Ibid. a scheme being adjudged unconstitutional. 3 In Copenhagen “all major sports federations and nearly 80 governments gave their approval to the first World Anti-Doping Code by unanimously backing a Resolution that accepts the Code as the Other factors to bear in mind in considering whether basis for the fight against doping in sport.” See www.wada-ama.org. The Code is “the first a blood testing policy is justifiable include: the integrity international instrument to harmonise rules regarding doping across all sports and all nations.” Ibid. 76 Several sporting organisations already have formally adopted the Code, a move which reflects the and accuracy of the testing, and the existence of anti-doping momentum. Ibid. 4 World Anti-Doping Code, version 3.0 (20 February 2003), 8. alternatives. The following questions might therefore 5 M Beloff and R Beloff, ‘Blood Sports – Blood testing, the common law and the Human Rights Act’ [2000] 2 ISLR 43. arise: Is there a strict chain of custody? Are there re- 6 Brian Corrigan and Ray Kazlauskas, ‘Drug testing at the Sydney Olympics’, (2000) 173 MJA 312. testing procedures? Is quality assurance inherent in the Limited blood testing has been conducted at Winter Olympics since 1994. Ibid. 7 Ibid. Widespread use of EPO is suspected among endurance cyclists and runners as it “artificially testing scheme? Finally – and this seems fundamental increases red blood cell count allowing more oxygen to be transmitted to the tissues.” Beloff and Beloff, supra, n.5, at 43. See also, ‘Common Questions About EPO’, at www.drugfreesport.com. to the debate – is an equally effective but less intrusive 8 Beloff and Beloff, ibid. 77 9 ‘Doping-Free Sport: Blood Sampling’, at www.cces.ca. An ‘International Standard for Testing’ was means to the same end available? approved by WADA’s Executive Committee on 7 June 2003. See www.wada-ama.org. Certainly it is arguable, given the considerable 10 Alister Browne et al., ‘The ethics of blood testing as an element of doping control in sport’ (1999) Medicine & Science in Sports & Exercise 497. improvement in detection methods since the mid- 11 Ibid. As Mark Gay suggests, a blood test “represents a much greater intrusion on the physical integrity of the athlete.” ‘Dope testing techniques in the dock’, (4 September 2003) The Lawyer, at 1990s, that blood sampling is not only a legitimate 13. See also, Beloff & Beloff, supra, n.5, at 43. aspect of doping control, but an essential one as well. 12 For discussion, see Richard Clayton & Hugh Tomlinson, The Law of Human Rights (Oxford: OUP, 78 2000), at 5-6. As noted earlier, some drugs such as EPO elude 13 Ibid., at 5. 14 Ibid., at 5. detection by urine test alone. Thus blood testing is 15 Indeed, this is a hotly debated subject. See for example, David Pannick & Jane Mulcahy, ‘The Human Rights Act 1998 and Sport’, in Adam Lewis & Jonathan Taylor, Sport: Law and Practice distinctly superior to urinalysis, in this respect at least, (London: Butterworths, 2003), chapter A4, at 231. See also Beloff & Beloff, supra, n.5, at 45. in terms of reliability and efficacy. Significantly too, 16 These could include: Article 6 (‘Right to Fair Trial’); Article 9 (‘Freedom of Thought, Conscience and Religion’); and Article 14 (‘Prohibition of Discrimination’). See Beloff & Beloff, ibid. athletes themselves have a growing confidence in the 17 There is a vast body of literature on the right to privacy generally. See for example, David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Clarendon Press, 1993), Part III; R validity of blood testing, and as a group appear firmly to Wacks, The Protection of Privacy (Sweet & Maxwell, 1980); and A Westin, Privacy and Freedom 79 believe that blood sampling is vital for doping control. (Bodley Head, 1967). 18 See S Warren and L Brandeis, ‘The Right to Privacy’ (1980) 4 Harvard Law Review 193. Thus although sports governing bodies may find their 19 See David Feldman, ‘Secrecy, Dignity or Autonomy? Views of Privacy as a Social Value’ (1994) 47 CLP 41. policies and drug testing regimes rigorously scrutinised 20 See R Wacks, supra, n.17. 80 21 See Pannick & Mulcahy, supra, n.15, at 231. as a result of the passage of the HRA, it seems unlikely 22 See Clayton & Tomlinson, supra, n.12, at 811. See also Pannick & Mulcahy, ibid., at 251. that blood tests introduced as part of anti-doping policies 23 Pannick & Mulcahy, ibid., at 251. See also Lester & Pannick, Human Rights Law and Practice 81 (London: Butterworths, 1999), paras 3.15 and 3.16. Lester & Pannick emphasise at 3.15 and 3.16 will be deemed to be incompatible with Article 8. There that the “nature, context and importance of the right asserted and the extent of the interference must be balanced against the nature, context and importance of the claimed public interest.” It seems a persuasive argument that the genuine and bears mentioning, too, that the tests contemplated by the HRA are very similar to those tests pressing concerns of sports governing bodies worldwide applied when reviewing the actions of sports governing bodies in other contexts – for example, in relation to competition law, free movement and the restraint of trade. See Lewis & Taylor, supra, in defeating, deterring and detecting drug use in n.15, chapter A3. 24 See Pannick & Mulcahy, supra, n.15, at 233, where the authors agree with the “prevailing opinion” athletes, and in preserving the integrity of sport as a that “the majority of sporting bodies will satisfy this criterion, at least in relation to some of their functions.” See also, Simon Boyes, ‘Regulating sport after the Human Rights Act 1998’ [2001] New whole outweigh any individual privacy concerns Law Journal 444. presented by compulsory blood testing policies. 25 HRA, section 6(1). See Clayton & Tomlinson, supra, n.12, at 186; and Pannick & Mulcahy, ibid., at 236-237. 26 There have been a number of unsuccessful judicial review applications against the Jockey Club (See R v Disciplinary Committee of the Jockey Club, ex p Khan (1993) 1 WLR 909 (CA); R v Jockey Club, ex p Massingbird-Mundy [1993] 2 All ER 207; and R v Jockey Club ex p RAM Racecourses Ltd [1993] 2 All ER 225) and the Football League (See R v Football Association of Wales, ex p Flint Town United Football Club [1991] COD 44; and R v Football Association Ltd, ex p Football League Ltd [1993] 2 All ER 833). Traditionally, the fact that relationships between sporting bodies and their members are usually created and governed by contract has been the “decisive factor for English courts in deciding that sporting bodies are not susceptible to judicial review.” Pannick & Mulcahy, ibid., at 237. 27 For discussion, see Clayton & Tomlinson, supra, n.12, at 202-203; and Pannick & Mulcahy, ibid., at 237. 28 ‘The Human Rights Act and Sport’ www.ccpr.org.uk/campaigns/content/human.html. Simon Boyes observes, however, that English courts have consistently demonstrated a reluctance to intervene in the internal operations of sports governing bodies. Supra, n.24, at 444. 29 It bears mentioning that UK Sport has recommended that sporting bodies ensure that their procedures are compatible with Convention rights on the basis that they may be adjudged to be ‘public authorities’ for the purposes of the HRA. See UK Sport, ‘Human Rights Act – Implications for Sport’ (vol.3) (14/12/2000) (cited in Pannick & Mulcahy, supra, n.15, at 236). Even if sports governing bodies are not considered to be ‘public authorities’ for the purposes of the HRA, Pannick & Mulcahy highlight, at 236-237, two additional reasons why a sporting body may nonetheless be required to take account of Convention rights: either because its disciplinary procedures (or aspects of them) may constitute “tribunals” for the purposes of s.6 (the Act applies not only to ‘pure’ public authorities but also to the public functions of ‘quasi’ public authorities); or because a court as a public authority deciding a case involving a sporting body may have to take account of Convention rights even as between private parties. See also, Stjerna v Finland (1994) 24 EHRR 194; Clayton & Tomlinson, supra, n.12, at 202-203; and Beloff & Beloff, supra, n.5, at 44. 16 Sport and the Law Journal Volume 12 Issue 2

30 Hansard HC, 20 May 1998, Col 1018. 64 Skinner, supra, n.41, at 619. 31 For a detailed discussion of the meaning of ‘public authority’ for the purposes of Section 6, see 65 Vernonia v Acton, supra, n.63. Pannick & Mulcahy, supra, n.15, at 236-241. 66 Ibid. 32 See Beloff & Beloff, supra, n.5, at 43. 67 Boyes #2, supra, n.35, notes at 517 that in the US, “breaches of the right to privacy must be 33 X v Austria (1979) 18 DR 154, EComm HR. In this case, a blood sample extracted for a paternity suit justified by reference to the promotion of compelling government interests – similar to the was found to be justified by the need to protect the rights of others. For discussion, see Pannick & ‘pressing social need’ test utilised in the context of the [Convention].” Mulcahy, supra, n.15, at 250. See also, X v Netherlands (1979) 16 DR 184, 189 EComm HR (taking 68 See Skinner, supra, n.41 (blood tests do not “infringe significant privacy interests”); Winston v Lee, blood in connection with determining blood alcohol level for the purposes of road traffic legislation supra, n.43 (not an “unduly extensive imposition”); and Breithaupt v Abram, supra, n.56 (“routine” was justified on similar grounds). and “would not be considered offensive by even the most delicate”). With respect, there are few 34 Peters v Netherlands (1994) 77-A DR 75, EComm HR (prisoner’s complaint concerning compulsory procedures that are much more intrusive than the compulsory administration of a blood test. random drug testing by urine sample in prisons unsuccessful because fell within Art 8(2)). See 69 Vernonia v Acton, supra, n.63. See also, Schaill, supra, n.39 at 1319. Clayton & Tomlinson, supra, n.12, at 812; and Pannick & Mulcahy, ibid., at 250. 70 Boyes #2, supra, n.35, at 517. See for example, O’Halloran v University of Washington 679 F.Supp 35 See Simon Boyes, ‘The regulation of sport and the impact of the Human Rights Act 1998’ [2000] 997 (1988). 6(4) EPL 517 [hereinafter “Boyes #2”]. 71 Supra, n.63. See also, Schaill, supra, n.39, at 1319 (student athletes possess a diminished 36 It bears mentioning that Article 8 could have at least one other implication for sport – namely, high expectation of privacy because of both the extensive athletic regulations and the “communal profile athletes could seek to invoke the right to privacy to protect themselves from unwanted undress” intrinsic in athletic participation). McCray, supra, n.47, observes at 403 that in upholding media and press intrusion. See ‘The Human Rights Act and Sport’, drug testing schemes, courts have found it particularly relevant that students could avoid the policy www.ccpr.org.uk/campaigns/content/human; and Pannick & Mulcahy, supra, n.15, at 249 n2. entirely by choosing not to participate in athletics. The ‘voluntary’ nature of sport may also be 37 Supra, n.5, at 43. considered a weighty factor on an Article 8 analysis. It bears mentioning that in Board of Education 38 See for example, R v Colarusso [1994] 1 SCR 20 (discussing the constitutionality of compulsory v Earls 122 S.Ct. 2559 (2002) the principles established in Vernonia were extended to cover the blood and urine testing). random drug testing of students participating in competitive, non-athletic extracurricular activities. 39 864 F.2d 1309 (7th Cir. 1988). 72 691 So. 2d 324 (La. Ct. App. 1997). 40 Ibid., at 1312. The Court continued, “even though [urine] is excreted from the body, it is not 73 Ibid., at 329-330. knowingly exposed to the public; instead the manner in which an individual disposes of his or her 74 Vernonia v Acton, supra, n.61, at 658. urine is a highly private matter. This demonstrates that urine is not intended to be inspected or 75 Robert Roshkoff, ‘University of Colorado v Derdeyn: The Constitutionality of Random, Suspicionless examined by anyone” (at 1312). Urinalysis Drug Testing of College Athletes’, (1996) 3 Vill. Sports & Ent. L.J. 361. For example, it has 41 Skinner v Railway Labor Executives’ Ass’n 489 U.S. 656 (1989). See also, Lovvorn v City of been suggested that the direct observation of urine sample collection may be unreasonably Chattanooge, 846 F.2d 1539, 1543 (6th Cir. 1988) (“There are few other times where individuals invasive of an athlete’s legitimate privacy expectations: Charles Knapp, ‘Drug Testing and the insist as strongly and universally that they be let alone to act in private”); and Charles Fried, Student Athlete: Meeting the Constitutional Challenge (1990) 76 Iowa L. Rev. 107 at 135 (citing ‘Privacy’, (1968) 77 Yale LJ 475, at 487 (noting that “in our culture the excretory functions are National Treasury Employees Union v Von Raab, 489 U.S. 656 (1989), at 672 n2; Skinner, supra, shielded by more or less absolute privacy, so much so that situations in which this privacy is n.41, at 626; and Schaill, supra, n.39, at 1318). Similarly, Knapp, ibid., suggests at 135 that violated are experienced as extremely distressing, as detracting from one’s dignity and self conducting mandatory drug tests in the off-season may indicate that a particular program is esteem”). “overbroad” (citing Iowa High Sch. Athletic Ass’n, 197 N.W. 2d 555 (Iowa 1972)). However, as long 42 Blood testing raises a further significant potential for the invasion of privacy – namely, other health as a given drug testing scheme is adjudged to be limited to what is absolutely necessary for the problems will be detected, and unauthorised testing may be conducted for other conditions such as attainment of the legitimate objective, it should pass constitutional – and Convention – muster. HIV. Browne et al., supra, n.10. 76 There has been considerable progress in, and refinement of, blood sampling procedures since the 43 See for example, S v McC (1972) AC 44, at 73 (per Lord Reid: “there is no doubt that a person of 1990s in order to ensure that: the health and safety of the athlete and officials are not full age and capacity cannot be ordered to undergo a blood test against his will”). See also the U.S. compromised; the blood sample is of a quality and quantity that meets laboratory guidelines; the cases Bednarik v Bednarik (1940) F.2d 80, 90 (“To subject a person against his will to a blood test is blood sample is clearly identified; the sample is securely sealed in the athlete’s presence; and the an assault and battery, and clearly an invasion of his personal privacy”); Winston v Lee, 470 U.S. sample is accurately documented. See ‘Doping-Free Sport: Drug Sampling’, supra, n.9; and WADA’s 753 (1985) (Forced blood extraction intrudes on the private personal sphere and infringes upon an ‘International Standards for Testing’, at www.wada-ama.org. individual’s “most personal and deep-rooted expectations of privacy”); and Schmerber v California 77 In Vernonia v Acton, supra, n.63, it was argued that suspicion-based drug testing was a “less 384 U.S. 757 (1966) (compulsory blood test “plainly involves ... a search and seizure under the intrusive means to the same end.” However, US courts have held that individual suspicion of drug Fourth Amendment”); and the Canadian cases Colarusso, supra, n.37; R v Pohoretsky [1987] 1 SCR use to be tested is not a necessary pre-requisite to urine testing, and that it is not only the “least 945; and R v Dyment [1988] 2 SCR 417. It is important to note that in England, there are broadly intrusive” search practicable which can be reasonable under the Fourth Amendment. Ibid. two areas where Parliament has legislated that compulsory blood tests may justifiably be taken: Moreover, in this context, the Supreme Court has observed that suspicion-based testing “entails its Road Traffic (i.e. Road Traffic Act 1988 ss. 7 and 11, aimed at preventing drivers being under the own substantial difficulties.” In Earls, supra, n.71, the Supreme Court questioned whether “testing influence of alcohol or prohibited substances) and Family Law (i.e. Family Law Reform Act 1969, ss. based on individualised suspicion in fact would be less intrusive.” Breyer J noted that a 20-22, aimed at establishing paternity in the child’s best interests). It may be that the underlying requirement of “individualised supsicion” could lead schools “to push the boundaries of statutory justifications for allowing compulsory blood testing in these contexts may similarly apply ‘individualised suspicion’ to its outer limits, using subjective criteria that may ‘unfairly target in the sporting context (i.e. justified by the need to protect the rights of others, or on the basis of members of unpopular groups.’” See Martin Belsky, ‘Random v Suspicion-Based Drug Testing in the the protection of health or morals). See also Beloff & Beloff, supra, n.5. Public Schools – A Surprising Civil Liberties Dilemma’, (2002) 27 Okla. City U.L. Rev. 1, at 20-21. 44 U.S. CONST. amend. IV. See Boyes #2, supra, n.35, at 517. A Fourth Amendment search is 78 Supra, n.7. considered “unreasonable” if it unjustifiably intrudes upon the privacy of an individual: Terry v Ohio 79 ‘Doping-Free Sport: Blood Sampling’, supra, n.9. In fact, athlete pressure was a critical motivating U.S. 1 (1968). factor in the recent initiation of the International Swimming Federation (FINA) blood sampling 45 Schaill, supra, n.39, at 1311-1312 (quoting United States v Jacobsen, 466 U.S. 109, 113 (1984)). scheme. Ibid. 46 See for example, Skinner, supra, n.41, at 616. 80 Boyes #2, supra, n.35, at 517. 47 James McCray, ‘Urine Trouble! Extending Constitutionality to Mandatory Suspicionless Drug 81 Beloff & Beloff, supra, n.5, suggest at 46 that as long as the procedures are “significantly superior Testing of Students in Extracurricular Activities’, (2000) 53 Vand. L. Rev. 387, at 397. See for in terms of their efficacy to other forms of testing in regard to any particular banned substance” example Skinner, supra, n.41, at 616; and Schmerber v California, supra, n.43. McCray notes, at they should satisfy Convention requirements. 397, that “the possibility that ...blood and urine testing may reveal numerous extremely private medical facts ... coupled with the possibility of the tested subject being visually or aurally monitored while he or she produces the sample, triggers the Fourth Amendment search analysis.” 48 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11. 49 See R v Colarusso, supra, n.38; and R v Dyment, supra, n.43. 50 The Fourth Amendment does not proscribe all searches and seizures but only those that are “unreasonable”: Skinner, supra, n.41, at 619. 51 See discussion above, n.43. 52 See the discussion in Boyes #2, supra, n.35, at 517. 53 Supra, n.33. 54 Boyes #2, supra, n.35, at 517. See also, Beloff & Beloff, supra, n.5, at 46. 55 Supra, n.33, at 157 (discussed in Boyes #2, ibid., and Beloff & Beloff, ibid). See also, Peters v Netherlands, supra, n.34, where a scheme of compulsory random drug testing by urine sample in prison was held to be justified under Article 8(2). 56 See for example, Breithaupt v Abram, 352 U.S. 432 (1957); State v Bohling, 173 Wis.2d 529 (1993); and Schmerber v California, supra, n.43. 57 Supra, n.5, at 46. 58 Boyes #2, supra, n.35, at 517. 59 See for example the USADA’s Mission, located at www.usantidoping.org/what_is/mission. As Corrigan & Kazlauskas, supra, n.6, aptly observe at 313, the use of performance-enhancing drugs “demeans both sport and the athletes who use them.” 60 Handyside v UK (1976) 1 EHRR 737) (discussed in Beloff & Beloff, supra, n.5). See also, Dudgeon v UK (1981) 4 EHRR 149; and Clayton & Tomlinson, supra, n.12, at 831. 61 See for example C-331/88 R v MAFF, ex p Fedesa [1990] ECR I-4023 at para. 13; Joined Cases T- 466/93 and others O’Dwyer v Council [1995] ECR II-2071 at para. 107; and Joined Cases C-254/94 and others Fattoria Autonoma Tabacchi [1996] ECR I-4235 at para. 55. See discussion in Mark Hoskins & Margaret Gray, ‘EC Free Movement Rules and Sport’, in Lewis & Taylor, supra, n.15, chapter B3. 62 Hoskins & Gray, ibid., at 445. 63 Vernonia School Dist v Acton, 115 S.Ct. 2386 (1995). In Canada, section 8 of the Charter similarly guarantees the right to be free from unreasonable search and seizure. The right to privacy has been espoused by the Supreme Court as the rationale for this guarantee, and the ‘reasonable expectation of privacy’ approach from American case law has been adopted. See for example, R v Edwards [1996] 1 SCR 128; and Hunter v Southam [1984] 2 SCR 145. 17 Volume 12 Issue 2 Sport and the Law Journal Should major league baseball adopt the WADA world anti-doping code to regulate the use of anabolic steroids?

By Leslie A. Ross Solicitor, London, England

A: Introduction Agency (“WADA”) on 10 November 1999. WADA has The World Anti-Doping Code (the “WADA Code”) came effectively assumed the IOC’s role in the fight against into force on 1 January 2004. To date, it has been doping in sports and lists its mission as “to promote 1 accepted by 154 national governments and 477 sports and coordinate at the international level the fight against 2 4 organisations worldwide, including the National Olympic doping in sport in all its forms.” Committees of both the United States and Canada and The WADA Code is the cornerstone of this fight and, their respective national anti-doping agencies, the United among other things, enumerates a definitive list of 5 States Anti-Doping Agency and the Canadian Centre for prohibited performance-enhancing substances and 6 Ethics in Sport. The WADA Code has not, however, been methods, the former of which includes anabolic accepted by any of the four major North American steroids. The final version of the WADA Code was professional sports leagues, despite the fact that some approved by numerous sports federations and 7 athletes in each of those leagues have long been governments at the World Conference on Doping in suspected of using performance-enhancing substances Sport in Copenhagen in 2003 and officially came into 8 including anabolic steroids. The World Anti-Doping Agency force in January 2004. The IOC subsequently amended has encountered significant resistance from these the Charter to provide that inclusion in the Olympic leagues, particularly Major League Baseball (“MLB”), in its Movement (which includes, inter alia, participation in efforts to persuade them to conform to the WADA Code’s Olympic Games by athletes and recognition of international standards of doping offences and sanctions. international sports federations by the IOC) is now 9 In light of this resistance, this paper will (a) provide a brief contingent upon compliance with the WADA Code. history of the WADA Code; (b) provide a brief descriptive and legal overview of anabolic steroids and the introduction of testing for their use; (c) compare the MLB A2. The US leagues Testing Program for anabolic steroids with the protocols As part of its international fight against doping in sport, envisioned by the WADA Code; (d) consider certain WADA has set its sights on the four North American related issues which will affect the potential adoption of major professional sports leagues (the National Football the WADA Code by MLB; and (e) conclude that MLB League (the “NFL”), the National Basketball Association should adopt the WADA Code but is currently unlikely to (the “NBA”), the National Hockey League (the “NHL”) do so due to the powerful influence exerted on MLB by and Major League Baseball (“MLB”) (collectively the both the owners and the players, the lack of international “US Leagues”)) in an attempt to address the alleged incentive and the lack of meaningful leverage capable of use by athletes in those leagues of performance- being exerted on MLB by WADA. enhancing drugs such as anabolic steroids. Although each league has its own policy with respect to the use of prohibited substances, in WADA’s view none of A1. A brief history of the WADA code these policies is stringent enough and all should be Chapter 1 of the Olympic Charter (the “Charter”) superseded by the WADA Code. provides that, among numerous other roles, the The US Leagues are generally viewed as being lax on International Olympic Committee (the “IOC”) “... leads drugs when compared with other sports such as athletics the fight against doping in sport and participates in the (referred to in North America as track and field). One of 3 international fight against drugs.” It was in this role that WADA’s primary goals is the international harmonisation the IOC convened the World Conference on Doping in of banned substance lists, doping offences and Sport in Lausanne in 1999 which led to the formal consequent penalties across all sports in order to avoid establishment of the independent World Anti-Doping double standards and divergent applications of doping

18 Sport and the Law Journal Volume 12 Issue 2

rules, which may otherwise benefit some athletes. For that operate as independent businesses and they are example, in August of 2003, UK sprinter Dwaine not (with some exceptions as discussed in Part D3 Chambers tested positive for the recently discovered below) subject to the jurisdiction of either the US federal 14 “designer” steroid tetrahydrogestrinone or “THG” and government or the national or international federations was subsequently banned from competition for two that govern each of their respective sports. As such, years by the International Association of Athletics they are under no obligation to conform to the doping Federations (the “IAAF”). Shortly thereafter, he was policies of those federations or to even acknowledge the given the opportunity to try out for various NFL scouts existence of WADA. WADA not only has no jurisdiction 10 with a view to playing American football in the NFL . over them, but also has very little leverage with which to 15 Although it has been speculated that the NFL was simply pressure them into adopting the WADA Code. trying to gain publicity in Europe by linking itself to a high profile athlete in his home market and that Chambers will never actually play in the NFL, there is currently nothing B: An overview of anabolic steroids WADA, the IOC or the IAAF could do to prevent him B.1 What are anabolic steroids? from doing so. Under WADA’s harmonisation objective, Anabolic Steroids are synthetic versions of the male there would be mutual recognition of suspensions by all hormone testosterone which artificially elevate naturally international federations and leagues and a ban by one occurring levels of testosterone in the body and are 16 such entity (in this case the IAAF) would effectively be a known as ergogenic or performance-enhancing drugs. ban by all entities (in this case including the NFL) and They can help an athlete quickly gain lean muscle mass, Chambers would never be able to take advantage of strength and endurance, especially if use is combined such an opportunity. with a strength training program and proper nutrition. This potential for disparity of sanctions applicable to Steroids can also enhance recovery time between athletes participating in the US Leagues and athletes workouts by quickly replenishing the muscle tissue participating in other sports was the subject of much broken down during, for example, weight training, which debate during the extensive consultation and drafting allows the athlete to increase the intensity level and 17 process of the WADA Code. The International Cycling frequency of his or her training program. Such benefits Union (the “UCI”) in particular argued that it would be often come at a price; the side effects of steroid use unfair for athletes in the latter category to lose their include an elevated risk of cancer, heart and liver livelihood for two years for certain offences when damage, endocrine system problems, increased athletes in the former category would not for the same cholesterol levels, hypertension, strokes, shrinkage and offences. The UCI went on to state that the WADA Code dysfunction of genitalia, acne and aggressive behaviour 18 should be applicable to athletes in the US Leagues in the (sometimes referred to as “roid rage”). Although same manner as it is to others so as to be currently irrelevant for athletes in the US Leagues, side 19 “fundamentally in line with the principles of effects for women can include “masculinisation” such harmonisation and fairness that the Code seeks to as development of body hair, breast reduction, 11 promote.” As previously stated, the WADA Code does deepened voice and reduction or cessation of not currently apply to the US Leagues but it does menstruation. Use of anabolic steroids by adolescents is specifically encourage “those professional leagues that particularly dangerous as it can lead to stunted growth. are not currently under the jurisdiction of any government B2. The legal status of anabolic steroids in North 12 or International Federation” to accept the Code. America 20 One of the main obstacles faced by WADA is the fact The use of anabolic steroids in both Canada and the 13 21 that the US Leagues are private, self-funding bodies US is illegal pursuant to federal law unless obtained by

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Should major league baseball adopt the WADA world anti-doping code to regulate the use of anabolic steroids?

prescription from a physician for a known medical Collective Bargaining Agreement with the NFL Players’ 28 29 condition. In the US, mere possession can result in a Association since 1993. Random tests are conducted 30 US$1,000 fine or a maximum one-year in prison while for both steroids and masking agents on 6 players possession for the purposes of trafficking, if a first from each team every week from the beginning of the felony drug offence, can result in a US$250,000 fine pre-season through the end of the post-season playoffs and up to five years in prison (if a second felony drug and periodically during the off-season. All players are offence, both penalties double). Many individual US tested at least once per year. There is also “reasonable states also have legislation in respect of anabolic cause” testing pursuant to which any player can be steroids, although a review of same is beyond the specifically targeted for testing in the event that (a) such scope of this paper. In Canada, there is no penalty for player has previously tested positive for steroids (either possession, however possession for the purposes of while playing in or prior to entering the NFL); or (b) in trafficking can result in a CAN$2,000 fine or up to three the opinion of team physicians and the director of the years in prison. steroid testing program, medical or behavioural 31 Notwithstanding the aforementioned legal prohibitions evidence warrants such testing. A positive test results and sanctions, anabolic steroids are easily obtainable by in a 4 game suspension for a first offence, a 6 game athletes competing in the US Leagues as they are suspension for a second offence and a one-year 32 available over the counter at pharmacies in Mexico and suspension for a third offence, all without pay. other Latin American countries, and increasingly, over the The NBA has included a steroid policy with internet. Further, the US federal government has, to date, mandatory testing provisions in its Collective Bargaining generally allowed the US Leagues to govern themselves Agreement with the National Basketball Players’ 33 and it therefore remains unlikely that an athlete Association since 1999. Random tests may be competing in such leagues will be either charged or conducted on all players once during training camp and convicted under federal steroid legislation. thereafter on first-year players up to three additional 34 times during the season. There is also a limited B3. The introduction of testing for anabolic “reasonable cause” testing provision permitting the steroids NBA to test a player where it has received information Although most international sports federations had that leads it to believe such player has used, possessed 35 introduced drug testing of their athletes by the 1970s, or distributed steroids. A positive test results in a five 22 particularly for the use of amphetamines, the use of game suspension for a first offence, a ten game anabolic steroids remained undetectable and was suspension for a second offence and a twenty-five 36 increasingly widespread. A reliable test was developed game suspension for a third offence, all without pay. in 1974 and the IOC subsequently added anabolic In November 2003, MLB announced that it would be 23 steroids to its list of prohibited substances in 1976. proceeding with a program of mandatory testing for the In 1988, Canadian sprinter Ben Johnson tested use by its athletes of anabolic steroids, which is further positive for the anabolic steroid Stanozolol at the Seoul discussed and contrasted with the WADA Code in the Olympics and was stripped of the gold medal he had following section. won in the 100 metres sprint. In 1990, the 24 subsequently formed Dubin Inquiry released its 638- page report which found, inter alia, that: C: Major League Baseball and anabolic “... evidence shows that banned performance steroids enhancing substances and in particular, anabolic C1. Why should Major League Baseball regulate steroids, are being used by athletes in almost anabolic steroid use? 25 every sport ...” There are three basic reasons why MLB, and any sport for that matter, should regulate the use of anabolic The NFL, the NBA and MLB have all subsequently steroids. Firstly, regulation is required to protect the 37 implemented policies and testing programs, with health of the players. As noted above, the use of varying degrees of severity, aimed at preventing the use anabolic steroids can lead to long term, irreversible 26 of anabolic steroids by their athletes. health problems, and in some cases can lead to 38 In the case of the NFL, the introduction of a testing premature death. Further, without regulation, “clean” program for anabolic steroids was actually initiated by players will be pressured into risking their health in 27 the NFL Players’ Union. The NFL currently has the order to be able to compete on what they view as an 39 most stringent steroids policy of all the US Leagues. It uneven playing field. has a zero tolerance approach and has included a Secondly, regulation is required to protect the integrity steroid policy with mandatory testing provisions in its of the game. The use of any performance – enhancing

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40 substance is cheating and compromises not only the roster were anonymously tested for certain anabolic integrity of individual results, but also the long-term steroids at some point during the 2003 season. An integrity of the sport and its legacy. MLB will want to additional 240 players were randomly tested a second avoid being in a position where its historical record book time. Once selected for testing, each player was requires asterisks to denote clean records and those subject to 2 tests, one initial test and a second follow 41 achieved by players using performance-enhancing drugs. up test conducted not less than five and not more than Thirdly, regulation is required to protect the seven days following the initial test. In total, 1,438 tests investment of the owners and the long-term economic were conducted on 1,198 players. More than 5% of the viability of the game. Although use of steroids can tests came back positive for anabolic steroid use which increase muscle mass, such an increase can lead to an triggered a clause in the CBA providing that Phase 2 unsustainable strain on tendons and ligaments and can (the Penalty Phase) would become effective for the result in an increased propensity to injury. Between 2004 season. Under Phase 2, all players are subject to 1997 and 2001, injuries among MLB players increased random testing during the season and subject to a by 130% and, as a result, owners paid approximately range of penalties for testing positive. Further, the $317 million in salary to players who were physically testing will continue until the total number of players 42 unable to play. testing positive for steroid use falls below 2.5% for two 48 consecutive seasons. C2. Major League Baseball’s anabolic steroid testing program MLB is the league and the de facto governing body for C3. Comparison of the MLB program and the professional baseball in North America and oversees 30 WADA code teams (or franchises) in 28 cities (26 in the United In the fight against doping in sport, any testing for 43 States and 2 in Canada ). Each team operates as a steroid use is better than no testing. However, when separate business but MLB regulates team ownership, compared with the scope of the WADA Code, numerous sets official rules and collects and distributes licensing shortcomings can be identified in the MLB Program. fees from centralised merchandising activities. Although These shortcomings have undermined American public regional broadcasting rights are held by the individual confidence in MLB’s dedication to eliminating the use of teams, MLB licenses national broadcasting rights and anabolic steroids and have further motivated WADA to distributes the revenues among the teams. MLB was lobby MLB to adopt the WADA Code. formed when the formerly rival National League and Firstly, the MLB Program is far less extensive than American League joined together in 1903. the WADA Code and only prohibits the use of 25 types As with the other three US Leagues, the players in of steroids (those which are covered by Schedule III of 49 MLB are represented by a labour union, in this case the the Controlled Substances Act). Major League Baseball Players Association (the “Players’ Secondly, unlike the WADA Code, the MLB Program 44 Union”). Under US federal labour law, MLB (which does not prohibit the use of steroid precursors such as 50 represents the teams or “employers”) is obligated to androstenedione, more commonly known as “andro.” negotiate or “collectively bargain” with the Players’ A precursor is a substance from which another Union in order to determine the terms and conditions substance is formed. Although andro is not itself a that will govern the employment of the players (the steroid, it metabolises in the body as testosterone, “employees”). Such terms and conditions will include which has the same effect as a steroid. St. Louis various issues which affect player rights, including drug Cardinal’s first baseman Mark McGwire admitted using testing, and must be agreed and codified in the andro in 1998, the year he hit 70 home runs to shatter Collective Bargaining Agreement between the parties Roger Maris’ long standing single season record of 61 (the “CBA”). MLB has historically taken the view that it set in 1961. Under the WADA Code, not only would 45 cannot act unilaterally and therefore cannot either McGwire be unable to take andro, he would be tested 46 51 impose drug testing or adopt the WADA Code without for an additional 41 banned steroids (and numerous 47 52 the agreement of the players via the Players’ Union. other prohibited substances). In August of 2002, MLB and the Players’ Union Thirdly, the MLB Program does not contain a “catch- agreed the latest version of the CBA, which came into all” clause. In listing prohibited steroids, the WADA effect on 30 September 2002 and is effective through Code specifically proscribes the use of “other 19 December 2006. For the first time in the history of substances with similar chemical structure or similar 53 MLB, the CBA contained a mandatory anabolic steroid pharmacological effect(s),” thereby ensuring that testing program (the “MLB Program”). Under Phase 1 athletes cannot exploit a loophole by using a product (the Survey Phase), all players on each team’s 40-man that is not yet identified as a prohibited substance but

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54 which provides the same physical advantages. which they can use steroids and bulk up with impunity. Fourthly, the MLB Program does not prohibit the use In fact, if a player tested negative in March, he would of masking agents such as diuretics, which can help an have a window of almost a year before potentially being athlete disguise evidence of anabolic steroid use. subject to testing again. Under the WADA Code, Diuretics act on the kidney and cause the increased athletes are subject to random, no advance notice, out- 59 excretion of urine which eliminates excess body fluids. of-competition testing and must make their They are commonly used by athletes for quick, temporary whereabouts known at all times in the event they 60 weight loss but may also be used to “flush out” other should be required for a test. substances or drugs from the body in an attempt to avoid Finally, the penalties imposed on MLB players for 55 61 detection of their use. As set out above, all testing under positive steroid tests, as set out in the Table 1 above, the MLB Program is conducted as a two-step process are minimal and clearly out of line with those and any initial positive test must be confirmed by a contemplated by the WADA Code: second follow up test which takes place five to seven A MLB player has to test positive five times before days after the first test. This gives players a minimum he might incur a one-year suspension. Further, given five-day window during which they can freely ingest that the average salary of a MLB player exceeds US$2.5 62 diuretics in order to flush any steroids out of their million per year, the proposed financial penalties are 56 systems. If the second test only shows the presence almost inconsequential and therefore unlikely to act as a of the diuretic (ie. the masking agent), the player will be deterrent. Under the WADA Code an athlete is subject deemed to have tested negative and the initial positive to a two-year ban for a first positive test and a lifetime 63 test will be stricken from the record. Pursuant to the ban for a second. In the view of much of the American WADA Code, masking agents such as diuretics are public, it is therefore difficult to view the sanctions in 57 prohibited substances. The presence of a masking agent the MLB Program as a serious attempt to rid the sport in an athlete’s urine is considered a doping offence and of steroid use. In the view of WADA President Richard the athlete would be subject to the same sanctions as Pound, none of the current policies and testing 58 those applicable for a positive steroid test. programs of the US Leagues has gone far enough, but Fifthly, players are only subject to testing between he saves particular criticism for MLB. spring training (commencing 3 March 2004) and the Following a review of the MLB Program and its close of the regular season (ending 3 October 2004) proposed sanctions, Mr. Pound responded: and are not tested during either the post-season (the “Baseball’s policy on steroids is a complete joke World Series finishes by late October) or the off-season. and an insult to the fight against performance- 64 This gives players a minimum 5-month window during enhancing drugs.”

Table 1: D: Related issues affecting the potential First Positive Player receives counselling adoption of the WADA code by Major Test No suspension or fine League Baseball No additional testing The following four related issues must be considered as Results not disclosed to the public they will affect the potential adoption of the WADA Code by MLB. The first three issues create additional Second Positive Player is fined up to US$10,000 or difficulties for WADA but the fourth issue may Test suspended for 15 days ultimately create leverage in WADA’s favour. Results disclosed to the public D1. The players’ union and drug testing as a Third Positive Player is fined up to US$25,000 or workplace issue Test suspended for 25 days As previously noted, the MLB teams operate as Results disclosed to the public independent, self-funding businesses. This commercial environment creates two factors, which together create Fourth Positive Player is fined up to US$50,000 or further difficulty for WADA. Test suspended for 50 days Firstly, the relationship between the players and their Results disclosed to the public respective teams is viewed in MLB as that of an employee and employer and drug testing is therefore Fifth Positive Player is fined up to US$100,000 or viewed as a workplace issue where the employees (ie. Test suspended for 1 year the athletes) have rights (including that of privacy) that 65 are protected by federal employment and labour laws.

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Secondly (and probably more importantly), the players members could potentially lose their jobs or be banned 70 are represented by the Players’ Union. As noted at page for life. 15 above, various issues, which affect player rights, including drug testing, are subject to mandatory D2. Lack of real incentive – the entertainment collective bargaining between MLB and the Players’ factor Union and must be agreed and codified in the CBA. The The term “entertainment sport” is sometimes used to Players’ Union has traditionally been opposed to any refer to the fact that the public wants and expects to be drug testing at all on the basis that it is an invasion of entertained when they attend a sporting spectacle. privacy and that random testing not only violates the WADA President Richard Pound has used the term to players’ civil rights but also violates the fundamental differentiate between the various approaches to drug legal principle of “innocent until proven guilty.” In 2002, testing in different sports: Donald Fehr, the Executive Director of the Players’ “The problem is the difference between real sport Union even suggested to the US Senate that the and entertainment sport. In real sport they take protections in the 4th Amendment to the US cheating seriously, in entertainment sport they 66 71 Constitution against unreasonable searches, although don’t give a shit .... baseball is just ludicrous.” not directly applicable to the private employment setting, should not be “put aside lightly” in the context At the extreme end of the scale of “entertainment 67 of drug testing of MLB players. sport” is World Wrestling Entertainment (“WWE”) In general, the attitude of MLB (and likely the other which, although based on a sport, is produced purely three US Leagues) towards the WADA Code can be for entertainment and is essentially a scripted soap epitomised by Marvin Miller, the former Executive Director opera acted out in a boxing ring. MLB teams operate as of the Players’ Union. In an interview conducted in June independent businesses and depend on a continuous 2002 Mr. Miller was asked why the random drug testing fan base for a significant system used by the IOC for the Olympics, where athletes MLB players are amount of their revenue. are subject to testing where and when the IOC chooses, getting bigger and As such, although they would not be good enough for baseball. He replied: are a far cry from the “I’m not familiar with all the details of the IOC’s strongerand the WWE, their entertainment plan but if it works in fact the way you described most prevalent value can sometimes be it, I would have to say that it’s an absolutely said to be more important outrageous violation of a person’s individual rights result is more than their sporting value. and should be absolutely unacceptable under any MLB has a long season; 68 hitting and more circumstances.” each team plays 162 home runs. games per year, prior to The Players’ Union is one of the most powerful Whether or not commencement of the labour organisations in the US and appears to consider playoffs. MLB must the WADA Code irrelevant when acting in its role as this is attributable ensure fans are protector of the rights of MLB players and addressing to anabolic steroid entertained in order that the terms and conditions of what it views to be internal, they continue to purchase domestic employment issues between the players and use, there is no tickets to attend games, the league. This position, combined with the fact that doubt that the to purchase licensed MLB (as well as the other US Leagues) operates in a merchandise and to watch much more isolated geographic environment than that 1990s have seen television broadcasts of of other more international sports such as football one of the greatest games, which increases (soccer), cricket or rugby has led to the view of MLB ratings and owners and players alike that drug testing is solely an hitting eras in correspondingly increases internal, domestic issue and they have no obligation to baseball history advertising revenue conform to international standards. The recent generated for the league. implementation of mandatory drug testing under the In 1993, MLB set a record for average attendance at 72 latest CBA is a tacit admission by the Players’ Union league games of 31,612. Shortly thereafter, the players 69 that the steroid issue needs to be addressed. went on strike over wage disputes resulting in a 7-1/2 However, the primary role of the Players’ Union is the month disruption and the cancellation of the World domestic protection of player rights and, despite Series for the first time in 90 years. MLB has yet to lobbying by WADA, it is unlikely that it will ever agree to again reach that 1993 level of attendance; average 73 full implementation of the WADA Code, under which its attendance in 2003 was 28,013.

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74 MLB players are getting bigger and stronger and MLB player would be contingent on such player the most prevalent result is more hitting and more subjecting themselves to a drug testing regimen home runs; namely, more entertainment and therefore consistent with the requirements of the WADA Code more fans attending games. Whether or not this is and the Olympic Movement. Both the NBA and the attributable to anabolic steroid use, there is no doubt NHL send their players to the Olympics and have that the 1990s have seen one of the greatest hitting negotiated appropriate testing programs with their eras in baseball history, which has increased interest in respective international governing bodies, the the game and brought back many of the fans lost during International Basketball Federation and the International 77 the above noted 1994 players strike. Roger Maris’ Ice Hockey Federation. It may however be a moot single season home run record of 61 set in 1961 stood point for baseball as MLB players do not generally 78 for 36 years but was broken 6 times between 1998 and participate in the Olympic Games and, in any event, 75 2001. In 1998, Mark McGwire of the St. Louis the status of baseball as an Olympic Sport is currently 79 Cardinals and Sammy Sosa of the Chicago Cubs under review by the IOC. conducted a season long battle to determine who The discrepancies between the MLB Program and would win the home run crown and whether one or the WADA Code were highlighted in a pre-Olympic 76 both would break Maris’ record. Interestingly, neither training camp for the US Olympic Baseball team in 80 team was a playoff contender but the battle generated October 2003 when 2 players, Derrick Turnbow, a such positive interest and publicity that fans flocked to Pitcher for the Anaheim Angels, and Terrmel Sledge, an the stadiums to see the teams play and hope to see outfielder for the Montreal Expos, each tested positive baseball history being made. for androstenedione (see The downside of this significant increase in The discrepancies page 17 and note 50 entertainment value is that, if steroids are a factor, there between the MLB above). Although USA is little incentive on the part of either the players, the Baseball has banned both Players’ Union or MLB to crack down on their use. The Program and the players from international owners obviously have a financial incentive to keep competition for two WADA Code were 81 attracting fans to the stadiums and will be loathe to years, they continue to take any action which may reduce the number of home highlighted in a play for their respective runs or negatively affect the hitters. The Players’ Union pre-Olympic MLB teams. wants to ensure salaries are kept at as high a level as Androstenedione is not 82 possible and, to a large degree, salaries are driven by training camp for banned by MLB and, statistics such as home runs and batting percentage. the US Olympic even if it was, it is unclear Although the health and integrity factors discussed at whether MLB would pages 13-14 above should be and likely are Baseball team in recognise the IBAF considerations, they appear to be secondary to the October 2003when suspension. preservation of the ongoing business of baseball. The situation was two players tested somewhat different and D3. Lack of International Leverage positive for MLB was forced to make The International Baseball Federation (the “IBAF”) is certain concessions in the international governing body for the sport of androstenedione. respect of the WADA baseball and has adopted the WADA Code. USA Code when negotiations Baseball, the US national governing body, is a member were taking place between MLB, the Players’ Union and of the IBAF and has also adopted the WADA Code. the IBAF for a proposed Baseball World Cup to be However, USA Baseball only has jurisdiction over organised by MLB in Spring 2005. Aldo Notari, the amateur baseball. As set out at page 7 above, MLB is a President of the IBAF, refused to sanction the private, self-funding body operating as an independent competition unless Olympic drug testing guidelines were business (a professional league) and does not respected. In this particular case, MLB had no bargaining participate in any events governed by either USA power as the IBAF’s recognition by the IOC as baseball’s Baseball or the IBAF. MLB is therefore not subject to international governing body is contingent upon the IBAF their jurisdiction and neither body has any leverage it respecting the IOC’s rules, including those on drug 83 can exercise in terms of forcing MLB to adopt the testing and the WADA Code. On 27 April 2004, MLB WADA Code . announced that an agreement had been reached and that The IBAF does, however, have jurisdiction over all athletes participating in the event would be subject to countries wishing to send baseball teams to the a drug testing protocol consistent with that of the WADA 84 Olympic Games and, accordingly, participation of any Code. Members of other U.S. Olympic teams are

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subject to testing as soon as they are named to the players to take immediate action to adopt a drug testing team. However MLB has said only that athletes would policy that would effectively deter players from using be tested “during the course of the World Cup.” The anabolic steroids and other performance enhancing 88 extent of the testing to which MLB players will be substances. In his floor statement, Mr. McCain stated: subject therefore remains unclear but it is likely safe to “This resolution would express the sense of the assume that the Players’ Union would never agree to the Senate that Major League Baseball’s current drug year round, out of competition, no notice testing testing policy stops short of what is necessary to envisioned by the WADA Code. Both the Players’ Union protect the game, its players and the children and 89 and MLB may however be forced to agree further teenagers who emulate them.” concessions in the event that the Baseball World Cup ever becomes a global event on the scale of the FIFA Although the resolution is non-binding, it sends a World CupTM. strong message to MLB that the government is watching. WADA can only hope that the US government 90 D4. The Threat of US Government Intervention will back this initiative and introduce binding legislation, As noted at page 9 above, the US Government has, to with sanctions more in line with those in the WADA 91 date, generally allowed the US Leagues to regulate Code, in the event that MLB fails to act. themselves. However baseball is “America’s Game” and “an institution inextricably interwoven into the fabric of E: Conclusion 85 our culture.” Public opinion therefore demands not only MLB clearly needs to strengthen its steroid testing the protection of the integrity of the game by MLB (as program if it wishes to send a message that it is serious discussed at page 13 above) but that the US federal about eliminating the use of anabolic steroids by its government also keep a somewhat interested eye. The players. Adopting the WADA Code would be a step issue of steroid use in baseball has been previously towards accomplishing that objective. However, given the raised by several governmental departments and was independent, commercial nature of MLB and its teams, the subject of congressional hearings in 2002. The the strength of the Players’ Union and the additional recent disclosure of the MLB Program and its relative factors which have resulted in a lack of either domestic or leniency, however, has attracted the attention of US international incentive, neither WADA nor the IBAF President George Bush, a former owner of MLB’s Texas currently has sufficient leverage or influence which will Rangers. In his State of the Union address given on 21 enable it to successfully pressure MLB into adopting the January 2004, Mr. Bush stated: WADA Code. A stricter testing regime more in line with “The use of performance enhancing drugs like that of the WADA Code will likely only be implemented by steroids in baseball, football and other sports is MLB if (a) baseball becomes a more international sport dangerous, and it sends the wrong message – that and MLB players become subject to the further there are shortcuts to accomplishment, and that jurisdiction of the IBAF; or (b) the US Government performance is more important than character. So introduces binding legislation forcing it to do so. tonight I call on team owners, union representatives, coaches and players to take the lead, to send the right signal, to get tough, and to 86 get rid of steroids now.”

During a subsequent hearing conducted in March of 2004 by the US Senate Committee on Commerce, Science and Transportation, Senator John McCain, Committee Chairman, issued the following warning to Donald Fehr, the Executive Director of the Players’ Union: “Your failure to commit to addressing this issue straight on and immediately will motivate this committee to search for legislative remedies. The status quo is not acceptable. And we will have to act in some way unless the Players’ Union acts in 87 the affirmative and rapid fashion”

In April 2004, the US Senate passed a resolution introduced by Senator McCain, calling on MLB and its

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Publications 15 In contrast, US athletes who compete in track and field are subject to the jurisdiction (and Associated Press, “Anti-Doping Head: Baseball Drug Penalties a Joke and Insult” at therefore the doping policies) of both national (USA Track & Field (“USATF”)) and international www.CBSSportsline.com, 14 November 2003 (IAAF) governing bodies, both of which have adopted the WADA Code. Athletes must be in Associated Press, Study of 2003 Baseball Salaries as cited in “Money Matters”, 3 April 2003 at compliance with the WADA Code if they wish to compete in national championships (governed by www.cnnsi.com the USATF) or international competitions (governed by the IAAF). There is no such restriction on Associated Press, “Attendance Soars in Major League Baseball” 13 April 2004 athletes who wish to compete in the US Leagues. See also discussion of athletes in US Leagues Associated Press, “Bush Makes Anti-Drug Plea” at www.cbc.ca, 22 January 2004 participating in Olympic Games at page 26. Bloom, Barry M., “Selig, Fehr testify before Senate” at www.mlb.com, 10 March 2004. 16 Health Canada, “Straight Facts about Drugs and Drug Abuse” published in 2000 by the Minister of “Caminiti Comes Clean”, Sports Illustrated 28 May 2002 Public Works and Government Services, at pages 15 and 44. Daily Telegraph 26 July 1998 17 “Current Concepts in Anabolic-Androgenic Steroids”, Nick A. Evans M.D., American Journal of Evans, Nick A., M.D., “Current Concepts in Anabolic-Androgenic Steroids”, American Journal of Sports Sports Medicine, Volume 32, No. 2, March 2004 at page 534. Medicine, Volume 32, No. 2, March 2004 18 Ibid note 16. Health Canada, “Straight Facts about Drugs and Drug Abuse” published in 2000 by the Minister of 19 To date, only 2 women have participated in any of the US Leagues; Manon Rheaume, a goaltender Public Works and Government Services for the Canadian National Women’s Ice Hockey Team, who played an exhibition game for the Lewis, Adam & Taylor, Jonathan, “Sport: Law and Practice”, copyright Reed Elsevier (UK) Ltd. 2003. Tampa Bay Lightning on 23 September 1992 and Ann Meyers who was given a tryout with the Major League Baseball Collective Bargaining Agreement, September 2002 Indiana Pacers basketball team in 1979. National Basketball Association Collective Bargaining Agreement, January 1999 20 Controlled Drugs and Substances Act, S.C. 1996, c.19. National Football League Collective Bargaining Agreement, January 2002 21 Anabolic Steroids Control Act of 1990, Public Law 101-647, Sec. 1902, 104 Stat. 4851 (1990) National Hockey League Collective Bargaining Agreement, September 1993 amending 21 U.S.C. s. 812(c)(1981) to include anabolic steroids. See also discussion of the Anabolic Olympic Charter, published by the International Olympic Committee, July 2003 Steroid Control Act of 2004 at note 50. Report of the Commission of Inquiry Into the Use of Drugs and Banned Practices Intended to Increase 22 The greater urgency of testing for amphetamines was likely influenced by the untimely deaths of Athletic Performance (Ottawa 1990) Danish cyclist Knud Enemark Jensen (in 1960) and British cyclist Tommy Simpson (in 1967), both of “UCI’s Perspective on the World Anti-Doping Code”, published February 2003 by the International whom were alleged amphetamine abusers. Cycling Union 23 See “A Brief History of Anti-Doping” at www.wada-ama.org. World Anti-Doping Code, published by the World Anti-Doping Agency, March 2003 24 The Commission of Inquiry Into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, chaired by Justice Charles Dubin, was formed in Canada in the aftermath of the Ben Johnson scandal. 25 At page 517. Legislation – Canada 26 The NHL is the only US League that does not have a mandatory drug testing policy and does not Controlled Drugs and Substances Act, S.C. 1996, c.19 conduct tests on its players for the use of steroids. Players who are already in the league’s substance-abuse aftercare program may be tested, but the program is primarily aimed at abuse of Legislation – U.S. substances which create dependency issues such as alcohol, amphetamines and recreational drugs Anabolic Steroid Control Act 1990, Public Law 101-647, Sec. 1902, 104 Stat. 4851 (1990) amending 21 such as marijuana and cocaine. U.S.C. s. 812(c)(1981) to include anabolic steroids 27 This proactive desire to deal with the steroids issue may have been accelerated by the death of Clayton Act, 15 U.S.C. s. 15 Lyle Alzado, a high profile all-star defensive end who died in May 1992 at the age of 43 from a rare Constitution of the United States of America form of brain cancer. Although no conclusive link was ever determined, many physicians believed Controlled Substances Act, 21 U.S.C. s.801 et seq that abuse of steroids contributed to his premature death. Alzado himself believed that there was a Labour Management Relations Act of 1947, 29 U.S.C. s. 185 link between his admitted steroid abuse and his subsequent development of terminal cancer, as he National Labour Relations Act of 1935, 29 U.S.C. s. 151 acknowledged in an interview with Maria Shriver for “DateLine NBC” in 1991. Sherman Act, 15 U.S.C. s. 1-3 28 See page 15 for a discussion of players’ unions and collective bargaining agreements under US federal labour law. 29 Players to be tested are randomly selected by computer on a blind basis. 1 Each signatory must individually accept the WADA Code and implement it by ensuring that its own 30 See NFL Steroid Policy, Appendix A – List of Prohibited Substances. rules and policies are in compliance with the mandatory provisions of the WADA Code. See further 31 Ibid., Paragraphs 3 (Testing for Prohibited Substances) and 11 (Reasonable Cause Testing). discussion regarding acceptance of the WADA Code by national governments at note 7. 32 Ibid., Paragraph 6 (Suspension and Related Discipline). As the NFL regular season is only 16 games, 2 Figures are as at 12 October 2004. See “Code Acceptance” at www.wada-ama.org. a first offence will result in the offender being suspended (and losing his paycheque) for 1/4 of the 3 Olympic Charter, Chapter 1 (The Olympic Movement and its Action), paragraph 2(8). entire season. Contrast this with the penalties for a first offence in the NBA (suspension of 5 out of 4 As stated on page 2 of the WADA Strategic Plan 2004 – 2009. 82 games (6% of the season) – see page 12) and a first offence in MLB (no suspension out of 162 5 Classes of substances prohibited in-competition under the WADA Code include Stimulants, games – see page 20). Narcotics, Cannabinoids, Anabolic Agents, Peptide Hormones, Beta-2 Agonists, Agents with Anti- 33 Ibid note 28. Oestrogenic Activity, Masking Agents and Glucocorticosteroids. (See WADA 2004 Prohibited List, 34 See NBA CBA, Article XXXIII Anti-Drug Program, Sections 6 (Testing of First-Year Players) and 7 paragraphs S1 – S9). (Testing of Veteran Players). 6 Classes of methods prohibited in-competition under the WADA Code include Enhancement of 35 Ibid., Section 5 (Reasonable Cause Testing or Hearing). Oxygen Transfer (Blood Doping), Pharmacological, Chemical and Physical Manipulation and Gene 36 Ibid., Section 10 (Use or Possession of Steroids). Doping. (See WADA 2004 Prohibited List, paragraphs M1 – M3). 37 This view is not without its detractors. An alternate view is that this is a paternalistic approach 7 Many national governments cannot currently sign the WADA Code as they cannot be bound by a and that protection of the health of an athlete is a matter for the individual athlete and not for his document produced by a non-governmental organisation. They can however sign the non-binding or her respective sporting authority. See Adam Lewis and Jonathan Taylor “Sport: Law and Copenhagen Declaration, a political document by which they indicate their intention to formally Practice”, Chapter E4 “The Regulation of Drug Use in Sport” at paragraph E4.12. recognise and implement the WADA Code. In order to provide a more enforceable mechanism by 38 On 10 October 2004, the opening night of the MLB American League playoffs, Ken Caminiti, the which governments can adopt and enforce the WADA Code, WADA is cooperating with UNESCO 1996 National League MVP and an admitted steroid user, died from a heart attack at the age of 41. (the United Nations Educational Scientific and Cultural Organization) to produce an International The effect of his steroid use on his health or its contribution to his premature death remains Convention on Anti-Doping in sport (the “UNESCO Convention”). The UNESCO Convention will be a unclear, however, damage to the heart is a known potential side effect of steroid use (see page 8). legally binding document and will, to some extent (see below), endorse the WADA Code. It is 39 See note 70. scheduled to be finalised and confirmed by member countries at the UNESCO general meeting to 40 In an alternative view, former IOC President (and current Honorary President for Life) Juan Antonio be held in September 2005. Thereafter, and prior to the commencement of the 2006 Winter Samaranch has suggested, “substances that do not damage a sportsman’s health should not be Olympics in Turin, Italy, governments will be required to incorporate the UNESCO Convention into banned.” See Daily Telegraph 26 July 1998. their domestic law or be subject to sanctions imposed by the IOC which may include a prohibition 41 The current single season home run record holder is Barry Bonds of the San Francisco Giants who on either hosting (or bidding to host) Olympic Games or on sending athletes to Olympic Games. This hit 73 in 2001. Although Bonds himself has always denied using anabolic steroids, in February of prohibition will also likely extend to participation in any international competitions (such as world 2004, following an investigation of the Bay Area Laboratory Co-operative (“BALCO”), both Greg championships) as host countries or their respective international federations who have adopted Anderson (Bonds’ personal trainer) and Victor Conte (the founder of BALCO who provided Bonds the WADA Code will only permit the participation of others who have also adopted the WADA with supplements and received his endorsement) were indicted for illegally distributing anabolic Code. The UNESCO Convention is currently in draft form and not yet available to the public. steroids. BALCO first came to the attention of investigators as being the supplier of the “designer” Therefore the extent to which the entire WADA Code will be endorsed, the extent to which steroid tetrahydrogestrinone (or “THG”) noted at page 6 above. governments will be permitted to “opt out” of specific provisions of the WADA Code and the 42 “Caminiti Comes Clean,” Sports Illustrated 28 May 2002. resulting effect, if any, on the US Leagues all remain unclear. 43 As at the end of the 2004 season, there will be only 1 team in Canada, the Toronto Blue Jays, as 8 See note 1. the Montreal Expos are relocating to Washington D.C. for the 2005 season. 9 See Charter, Chapter 3: The International Federations, Rule 29 (Recognition of the International 44 National Labour Relations Act, 29 U.S.C., Chapter 7, Subchapter II. Federations); Chapter 5: The Olympic Games, Rule 45 (Eligibility Code), Rule 48 (World Anti-Doping 45 It is questionable whether or not this view is legally correct. Under US federal labour law, certain Code and Medical Commission), Rule 49 (Entries) and Rule 52 (Sports Programmes, Admission of residual rights are preserved for management, outside the CBA, under what is known as the Sports, Disciplines and Events). “management rights clause.” Pursuant to this clause, management is entitled to promulgate rules 10 Various track and field athletes have made the crossover into the NFL. In 1982, the San Francisco and regulations for the operation of its business on issues that are not covered by the relevant Forty-Niners signed Renaldo Nehemiah, a champion high hurdler and the first man to break the 13- CBA. Until 2002 there was no drug testing policy in the CBA so it could be argued that MLB would second barrier, to a pro football contract. He played for 3 years and won a Super Bowl with the have been entitled, prior to 2002, to invoke the management rights clause to unilaterally impose team in 1984. such a policy. It could be further argued that, although the CBA now covers in-competition drug 11 “The UCI’s Perspective on the World Anti-Doping Code” published February 2003 by the testing, MLB could invoke the same clause to unilaterally impose more stringent out-of-competition International Cycling Union, at page 3. testing (which is not currently covered by the CBA). However, it is beyond the scope of this paper to 12 See WADA Code, Article 23 (Acceptance, Compliance and Modification), Section 23.1.2 and pursue the intricacies of US federal labour law and the writer will therefore leave further debate on comment. this issue to those who know far more about labour law than she does. 13 The US Leagues receive no public funds. Sports organisations that receive public funding can be 46 The MLB Constitution contains what is known as the “best interests of baseball” clause, pursuant pressured into adopting the WADA Code by the funding body (usually the national government) to which the League Commissioner has limited powers to supersede the CBA and take unilateral making such adoption a condition of their funding. action. [See Major League Constitution, Article II, sections 3 – 6, (originally adopted as the Major 14 Except of course in relation to the general law of the land. League Agreement, 12 January 1921)]. The current Commissioner, Allan H. “Bud” Selig, has

26 Sport and the Law Journal Volume 12 Issue 2

intimated that he may invoke this clause in order to implement a more stringent drug testing Athens 2004 Olympic Games. program. However, he previously agreed with the Players’ Union never to do so on issues affecting 81 The suspensions were announced by Press Release of the United States Anti Doping Agency on 13 player rights [See undated letter from Bud Selig, MLB Commissioner, to Donald Fehr, Executive January 2004 in respect of Sledge and on 5 January 2004 in respect of Turnbow. Director, Players’ Union, Attachment 2 to the CBA]. It also remains questionable whether any such 82 See discussion on androstenedione and the Anabolic Steroid Control Act of 2004 at note 50. unilateral action by Mr. Selig could withstand a challenge by the Players’ Union under US federal 83 Similarly, a World Cup of Ice Hockey, organised by the NHL, in cooperation with the NHL Players labour law. Association, took place in September 2004 in Canada, the U.S. and Europe. The International Ice 47 MLB can however act unilaterally with respect to its Minor League or “farm” system and has Hockey Federation sanctioned the event because all parties agreed to implement a drug-testing imposed mandatory, no-notice drug testing on players in such leagues since 2001. Players are regime consistent with the provisions of the WADA Code. subject to unannounced testing up to four times per year, including during the off season and are 84 Major League Baseball Press Release 27 April 2004. tested for various prohibited substances including anabolic steroids and the weight loss drug 85 8 April 2004, Floor Statement in the U.S. Senate by Senator John McCain, Chairman of the US Ephedra, use of which contributed to the death of Baltimore Orioles pitcher Steve Bechler at the Senate Committee on Commerce, Science and Transportation. age of 23 on 17 February 2003. Players are also subject to testing for masking agents and steroid 86 Associated Press, “Bush Makes Anti-Drug Plea” at www.cbc.ca, 22 January 2004. precursors – see further discussion at pages 17-19. 87 See Barry M. Bloom, “Selig, Fehr testify before Senate” at www.mlb.com, 10 March 2004. 48 Paragraph 3(A) of Major League Baseball’s Joint Drug Prevention and Treatment Program – 88 The importance of baseball in the U.S. can be inferred from that fact that no Senate resolutions Attachment 18 to the CBA. were introduced in respect of the drug testing policies of any of the other 3 US Leagues. 49 21 U.S.C. s.801 et seq. 89 Ibid, note 85. 50 Until recently, androstenedione was not a prohibited substance under US federal law and was 90 The US government has already indicated an initial willingness to act – see discussion of the freely available over the counter in health food and other stores. Both MLB and the Players’ Union Anabolic Steroid Control Act of 2004 at note 50. have frequently relied on this fact to justify why andro has not been banned by MLB. When 91 WADA will also likely support the argument made by some that the continuation of MLB’s testifying before the US Senate in 2002 (see note 67), Donald Fehr, Executive Director of the exemption from anti-trust laws (granted pursuant to a 1922 decision of the US Supreme Court Players’ Union even challenged federal legislators to revisit the issue of whether andro and similar [Federal Baseball Club of Baltimore Inc. v. National League of Professional Baseball Clubs et al, 259 products with steroidal properties should be covered by Schedule III of the Controlled Substances U.S. 200, 42 S.Ct. 465 (1922)]) should be contingent on MLB adopting a stronger anti-drug policy. Act (see note 49). The legislators appear to have taken up the challenge as on 11 October 2004 the US Congress enacted the “Anabolic Steroid Control Act of 2004” which, inter alia, amends the definition of “anabolic steroids” in the Controlled Substances Act to include tetrahydrogestrinone (otherwise known as “THG” – see page 6) and “any drug or hormonal substance chemically and pharmacologically related to testosterone.” The result of this legislation will be that all steroid precursors such as andro will be regulated in the same manner as anabolic steroids (ie. possession and use would be illegal without a doctors prescription – see Section B2) and will be banned by MLB. At the time of writing, the legislation was expected to be imminently signed into law by President George W. Bush. 51 WADA 2004 Prohibited List, paragraph S4. 52 In 1999, McGwire publicly gave up taking andro, stating that he didn’t want kids taking it just because he did. 53 Ibid, Note 51. 54 See Johann Muehlegg v. International Olympic Committee CAS/2002/A/374 (24 January 2003). 55 Canadian Centre for Ethics in Sport – Banned Classes of Substances (at www.cces.ca). 56 A popular diuretic is Probenecid, which is used to treat gout but can also help to flush out steroids. 57 WADA 2004 Prohibited List, paragraph S8. 58 In February 2003, Australian cricketer Shane Warne was suspended for 12 months by the Australian Cricket Board after testing positive for two banned diuretics, amiloride and hydrochlorothiazide (see WADA 2004 Prohibited List, paragraph S8), which he claimed he was taking to help him lose weight. 59 See WADA Code, Article 5 (Testing). 60 In September 2003, Rio Ferdinand, a defender for Manchester United and the England National Football Team, left the Manchester United training ground without complying with a request by UK Sport doping officials for a urine sample. He claimed he forgot and was later photographed shopping in Manchester. He was subsequently determined to have “failed to attend a routine drugs test” and suspended by the England Football Association for 8 months. 61 Paragraph 9(B) of Major League Baseball’s Joint Drug Prevention and Treatment Program – Attachment 18 to the CBA. 62 Associated Press, Study of 2003 Baseball Salaries as cited in “Money Matters,” 3 April 2003 at sportsillustrated.cnn.com. 63 See WADA Code, Article 10 (Sanctions on Individuals). 64 Associated Press, “Anti-Doping Head: Baseball Drug Penalties a Joke and Insult” at www.CBSSportsline.com, 14 November 2003. 65 Including the National Labour Relations Act of 1935 and the Labour Management Relations Act of 1947, 29 U.S.C. s. 185. 66 Amendment IV to the US Constitution as codified in the Bill of Rights, ratified 15 December 1791. 67 12 June 2002, Statement of Donald Fehr, Executive Director, Major League Baseball Players Association, before the United States Senate, Committee on Commerce, Science and Transportation, Subcommittee on Consumer Affairs, Foreign Commerce and Tourism. 68 As interviewed by Allen Barra for Salon magazine on 20 June 2002, posted on www.salon.com/news/sports/col/barra/2002/06/20/miller/print.html. 69 The imposition of mandatory testing in the Minor Leagues (see note 47) is arguably a tacit admission by the owners of the same point. 70 The Players’ Union is however coming under increased pressure from “clean” players who resent the potential advantages gained by steroid users and therefore support a more stringent testing program. Among those speaking out is Reggie Jackson, a member of the baseball Hall of Fame and one of the game’s all time greatest hitters. See Associated Press, “Slugger Doesn’t Believe Today’s Athletes” 17 March 2004 at www.espn.com. 71 Reuters, “WADA mulls urging IOC to make U.S. a Sports Outcast” at www.ABS-CBNNews.com, 21 November 2003. 72 Associated Press, “Attendance Soars in Major League Baseball” 13 April 2004. 73 Ibid. 74 The average weight of players participating in MLB’s annual all-star game was 199 lbs in 1991 and had increased to 211 lbs by 2001 (“Caminiti Comes Clean,” Sports Illustrated, 28 May 2002). 75 Historical Statistics at www.mlb.com, Home Run Records, Single Season – 2001 (73 – Barry Bonds, San Francisco Giants; 71 – Sammy Sosa, Chicago Cubs); 1999 (65 – Mark McGwire, St. Louis Cardinals; 63 – Sammy Sosa); 1998 (70 – Mark McGwire; 66 – Sammy Sosa). 76 Both did break the record but McGwire was the eventual winner, hitting 70 to Sosa’s 66. 77 Similarly, the NFL will be subject to the jurisdiction of the International Federation of American Football in the unlikely event that American Football ever becomes an Olympic sport, and such federation is recognised as the international governing body by the IOC. 78 Primarily because the owners do not wish to shut down their playing season for a minimum of 2 weeks. 79 The Olympic Programme Commission presented a full review of the sports programme at the 114th general session of the IOC held in Mexico City in November 2002 and recommended the future exclusion of baseball, softball and modern pentathlon. It was resolved to postpone a decision on the recommended exclusions of these sports until after the 2004 Summer Olympic Games in Athens. 80 The US team consisted mostly of minor league players and subsequently failed to qualify for the

27 Volume 12 Issue 2 Sport and the Law Journal Football disciplinary codes – The triumph of expediency over justice

By Mel Goldberg and Simon Pentol

et there be no doubt – when it comes to on-field from the subsequent match. FIFA prefers instead to disciplinary issues, the football world is no place give statutory preference to the principle that “the Lfor the ECHR, let alone the common law. The referee is always right”(Art.78FDC). Disciplinary Codes presently in force for international Sanctity is to be found superficially within the ambit and domestic matches have been drafted in such a way of powers bestowed upon the DC to include that of to limit the scope for both effective challenge by a rectifying obvious errors in the referee’s disciplinary Player of an on-field violation and his avenue of appeal, decisions (Art.83(b)FDC) to such an extent that his rights have been all but abolished. Procedural requirements of challenge in World Cup matches 1. FIFA-LAW (applicable to matches played We say “superficial” sanctity because in World Cup both for club & country in the international matches there lies a two-fold procedural hurdle that arena) must firstly be overcome – The highly publicised case concerning the ultimately 1. The team captain must make protest to the referee unsuccessful attempt by Robbie Savage (for whom we immediately after the disputed incident has taken are both instructed) to overturn a dubious red-card place; and when playing for Wales in a World Cup Qualifier vs 2. The protest must be confirmed in writing to FIFA by N.Ireland, highlights how FIFA-law has been drafted in the head of the team delegation no later than 2 such a way to render challenge of such a decision nigh hours after the match and in cases during the impossible, with the result that the player concerned preliminary competition (ie World Cup qualifiers, such will automatically miss the biggest game of his career in as the Robbie Savage game), followed up by letter to the subsequent match vs England. the FIFA general secretariat within 2 days.

FIFA Disciplinary Process Failure to so comply will render invalid any The judicial bodies of FIFA are the Disciplinary subsequent attempt to invoke the DC’s power of Committee (the DC) and the Appeal Committee (the AC). rectification. FIFA law is enshrined effectively within its Does the onus to ensure compliance therefore rest Disciplinary Code of May 2002 (the FDC), its Statutes of with the player concerned? What recourse does the 2002 and its Regulations for the 2006 World Cup. player have if (in the heat of the moment) others fail him by their omission? These important questions Direct Expulsion remain unanswered. A “straight red card” (direct expulsion) is issued for Does the player have recourse to CAS in the event serious unsporting behaviour per law 12 of the Laws of of procedural non-compliance? We shall deal with this, the Game and defined in Art.52 FDC to include brute below. force & violent or aggressive conduct. It automatically incurs suspension from the subsequent international The substantive challenge match, although the DC may extend the duration of the Assuming no procedural bar exists and the player has a suspension. justifiable grievance, then what? FIFA Circular no. 866 of 24 September 2003, defines Challenge to Direct Expulsion an obvious error per Art.83FDC as principally an error of The FDC provides no right of appeal in cases of direct identity and stipulates that if any doubts remain, expulsion nor the corresponding automatic suspension (whatever the ground for complaint) then the referee

28 Sport and the Law Journal Volume 12 Issue 2

has clearly not made an obvious error. so narrowly by FIFA to deliberately prohibit any appeal The onus is therefore on the Player to prove beyond of the DC to uphold the original decision of the referee reasonable doubt that not only had the referee made an in any case, let alone in one where the sanction is less error, but that it was an obvious one. than a suspension of up to 4 matches. In which other disciplinary procedure we venture to In an arguable case therefore (such as Robbie suggest, would it be insufficient for a claimant to prove Savage’s) FIFA denies recourse to CAS with the result an official had merely made an error as opposed to an that the Player who falls victim to a questionable obvious one, in order to escape the sanction imposed? decision of the referee, is powerless to challenge that If the burden of proof were not high enough, access decision both within the framework of domestic law to a lawyer and the calling of “live” or expert evidence and FIFA law. The Player is denied the opportunity to to present his case rests solely within the discretion of challenge his automatic suspension from the the DC. subsequent match and in the case of Mr. Savage, will This request as we can attest is unlikely to be miss the “biggest game of his life”. granted. FIFA’s rationale runs, if the error is obvious, there is no need for lawyers nor the calling of evidence What option remains for the Player? to prove it – it will be clear on the face of the file and Given that CAS does not exist to operate outside the (any) video. Oh if only life were as simple as that! enabling provisions set by the given sporting institution to afford recourse to it, an application for a preliminary Appeal from the DC to the AC determination seeking a declaration that FIFA’s criteria An appeal to the AC lies only in cases where the are unfair, will doubtless fail. sanction imposed by the DC is greater than a three The only option for legal challenge is to the European match ban (Art.123FDC) – which is not much use to Court. With less than 4 weeks between the game in Robbie Savage nor anyone whose sanction is less than which Robbie Savage was sent-off and the game from a four match ban. which he is suspended, it is not a viable option, however meritorious the case. Appeal to the Football Chamber of the Court of All that remains is to highlight the iniquities in FIFA’s Arbitration for Sport (CAS) procedures and trust that the footballing bodies will FIFA provides recourse to CAS as the “court of last bring enough pressure to bear upon FIFA to change its resort” after all previous stages of appeal have been unfair laws. exhausted. It does so, as a quid pro quo to prohibiting recourse to ordinary courts of law (Art.61(2) FIFA 2. F.A-LAW(applicable to matches played in Statutes & Art.15(1) World Cup 2006 Regs.) the Premiership, Football League & Football Significantly however, Art.60(2) FIFA Statutes Conference) specifically provides that CAS shall not hear appeals on either: Pilot Scheme for 2004-5 Season 1. Violations of the Laws of the Game; or, A new disciplinary fast-track scheme governing on-field, 2. Suspensions of up to 4 matches. player related cases has been implemented by the F.A. this season. Given that by its nature, an appeal of a referee’s It follows the FIFA model and has been introduced to decision to expel a Player for putative violent conduct expedite the disciplinary process & prevent certain must necessarily involve a review of a violation of the Clubs from employing delaying tactics. Laws of the Game, recourse to CAS has been drafted Its greatest impact concerns automatic suspensions

29 Volume 12 Issue 2 Sport and the Law Journal

Football disciplinary codes – The triumph of expediency over justice

for incidents seen & dealt with by the referee and on- officials – representation is allowed at an appeal, but field incidents not seen by match officials but caught on given no appeal is permitted in cases where the ban is video. less than 4 matches, it is a right that exists in only a small number of cases. F.A. Disciplinary Process All matters are now referred to the Disciplinary Legal challenge to the new procedures Commissions (DC) that replace the Video Advisory Judicial Review of FA Procedures is not an option, Panel. Appeals are heard by Appeal Boards. however contemptible they seem to be. The FA is not susceptible to JR as its functions are deemed Automatic Suspensions for Incidents seen and insufficiently governmental in character and per Rose J. dealt with by the Referee in R-v-Football Assoc’n Ltd exp Football League Ltd Suspensions will come into force immediately unless a (Times 22-08-91) the FA is a domestic body whose claim for wrongful dismissal or mistaken identity is powers arose from and exist only, in private law. lodged by the Club (of the player concerned) with the A challenge to the High Court under the auspices of FA by 12pm the following day. Art. 6(1) ECHR will be equally difficult to sustain since The onus falls on the club as opposed to the player – the minimum requirement is a fair & public hearing by what recourse therefore will the Player have for any an independent & impartial tribunal, following by failure or dilatory response made by his Club, which application, the ruling in Phyliss Colgan -v- The Kennel deprives him of his opportunity to challenge the Club (QBD 26-10-01). referee’s decision? The new Code speaks about submitting relevant What option remains for the Player? documentation & video(s) etc in support of the player’s As with the FIFA Rules, the time has come for players claim but is silent on the rights of representation and to actively seek changes in FA Law by bringing public calling of live or expert evidence. pressure to bear upon the FA through the media & the That silence can be assumed to offer no such rights PFA by complaining about the anomalies we have at a challenge at “first instance”, given all claims are to identified. be dealt with, within 4 to 5 days of a fixture. The Reality On-field Incidents not seen by match officials but As unpalatable as it is, there is only so much that we as caught on video lawyers operating in the football arena, can do to This applies to serious incidents which would otherwise redress the unfairness that exists in the disciplinary warrant a straight red-card and the sanction will take the process adopted by the respective bodies against the form of match bans, not fines. interests of our clients. Where a charge is brought, an offer of sanction ie We can identify the issues and advise accordingly. length of ban will made to the Player. If he denies the The impetus for change has to come from the charge or refuses to accept the sanction, the case will Players and the clubs / international teams who suffer. be heard by the DC on the basis of documentation & Politics in football often dictates whether the video evidence only – there is no personal challenge will be taken. representation nor live evidence. We strongly encourage that it is. Given the blanket video coverage of fixtures and the serious nature of the incidents to be dealt with, the denial of both representation and the calling of live evidence in cases which will likely turn upon issues of credibility & video-enhancement, amounts to a denial of Mel Goldberg, Solicitor – partner Max Bitel Greene the basic rights to a fair trial. Simon Pentol, Barrister – 25 Bedford Row 2nd October 2004 Appeals For offences not seen by the match officials, appeals will be permitted only if the ban exceeds three matches and then, only to that part of the ban which exceeds three matches. A player therefore who is banned for up to three matches in these circumstances, is denied a right of appeal. Paradoxically, for offences not seen by the match

30 Sport and the Law Journal Volume 12 Issue 2

31 Volume 12 Issue 2 Sport and the Law Journal Community Amateur Sports Clubs – Important Tax Incentives!

The promotion of ‘healthy living’ is high on Government’s agenda. ‘Game Plan’ (December 2002) recommended ambitious targets for increasing mass participation in physical activity, but at the time, the tax system did nothing to facilitate the achievement of these targets. The ability to register as a Community Amateur Sports Club (“CASC”) has changed the outlook for the better. Here Richard Baldwin of Deloitte – one of the main authors of the legislation – gives his views.

Introduction Progress to date Government has now acknowledged the vital role that CASC registrations were slow to take off; Finance Act local sports clubs play in our society in promoting social 2002 introduced reliefs confined to exemption from and community inclusiveness and, more particularly, corporation tax (now extended this year) and gift-aid health through regular exercise. Historically, this significant relief for individuals. It was not until September 2003 contribution has not been recognised through the tax that the Local Government Act introduced mandatory system which, if anything, has hindered the development rate relief, accelerating registrations, particularly for of sports clubs. Young people are increasingly losing those clubs that owned or occupied their own facilities. interest in sport after they leave the education system. As at 30 September 2004, 1,875 clubs had Local sports clubs, established on a sound financial basis, registered as CASCs, and Table 1 contains a league can help reverse this decline in participation. table of the top ten sports. Cricket is leading the way, The voluntary sports club sector suffers from a lack of and congratulations to that sport, reflecting a significant both cash and adequate facilities despite the valuable effort made by it to promote the CASC initiative. efforts of many thousands of volunteers. In the past two years, and following Government and Charity Commission Table 1: Top 10 Registrations – 30 September 2004 consultation, we have now entered a new era for the amateur sports club, which can now take advantage of Registered CASCs valuable new tax reliefs by registering either: 1. Cricket 402 • as a charity with the Charity Commission; or 2. Bowling 285 • as a CASC with the Inland Revenue. 3. Tennis 166 4. Rugby Union 148 As anticipated at the time, registration as a CASC 5. Golf 129 has proved to be more popular principally because of 6. Football 126 the ease with which the clubs can follow this 7. Sailing, Yachting & Cruising 117 alternative. However, the Charities Bill currently going 8. Mixed Sports 111 through Parliament, which makes the advancement of 9. Gaelic football & Hurling 56 amateur sport a charitable objective, may encourage 10. Shooting 55 more to register as charities. In the past, sports clubs, whether incorporated or not, Total 1,595 have generally enjoyed no special exemptions from tax; Note: Registered CASCs serving the top ten sports include 1,595 (or 85%) out of the 1,875 neither has a complex tax system encouraged giving to registered clubs. clubs. Registration under either of the two new routes Source: Deloitte analysis of Inland Revenue list. changes all of this. In view of the popularity of the CASC route, this article concentrates on the benefits and Registration by these clubs has already generated a qualification rules for CASCs. However, the Charity total cash benefit for them, estimated by Deloitte at £4.7m Commission website, www.charity-commission.gov.uk as per Table 2. This effectively represents one year’s cash provides details of the charity alternative. benefit from the scheme, and it is estimated that the

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Table 2: Total Cash Benefit to Clubs – estimated Table 4: Case study – Wembley Cricket Club 30 September 2004 • The club decided to register as a CASC, finding the £m registration process relatively straightforward. Rate relief 2.6 • Only minor amendments to its Constitution were Corporation tax savings 1.5 needed, registration taking only a couple of weeks. Gift Aid repayments 0.6 •Tax repayments of £836 have already been received on individual donations. Estimated Total Cash Benefit 4.7 • The club’s rates bill was over £5,000 pa with only 25% discretionary relief from the Council. Source: Deloitte analysis. • 80% mandatory relief is worth nearly £3,000 pa, plus the certainty that the Council will not withdraw it. future annual benefit will be at least £5m, a substantial • CASC registration has already generated nearly sum when one considers how difficult it is to obtain £4,000 for the club with the potential for an annual Government funding for sport. Indeed, there is more to cash benefit at that level. go for, since DCMS estimated in June 2004 that around 40,000 amateur sports clubs across the UK might benefit Source: “Scorecard” Middlesex Cricket Board’s Newsletter. from CASC status, generating an estimated annual saving of £75m. These would not only be clubs with facilities, Wembley Cricket Club have obtained from registering but also clubs that have the ability to raise funds from as CASCs. individuals under gift aid. Scope for tax effective fund- raising even by the smaller clubs may give rise to gift aid tax repayments, which may make registration worthwhile. Corporation Tax CASCs enjoy complete exemption from corporate tax on interest, gift aid income and capital gains provided What are the benefits? these are applied for qualifying purposes. However, CASCs enjoy the following tax reliefs: exemption from corporation tax is only available on: • exemption from corporation tax, subject to certain limits; •profits from trading and fund-raising where gross • individuals can make gifts to CASCs, using gift aid; income is less than £30,000 per annum; • mandatory rate relief of 80%; • income from property where the gross income is less than £20,000 per annum Table 3: Case study – Woodford Rugby Football Club provided, again, that the income is applied for qualifying purposes. • Club membership is over 500. If the above limits are exceeded then: •A new clubhouse was built in the mid-1990s, partly • 100% of the income is taxable without any marginal funded by loans. relief; • CASC registration is a major opportunity for using • it is possible to deduct notional costs in arriving at gift aid, which has enabled the club to raise taxable income; donations and repay its loans. •the exemptions for non-commercial and mutual income •Tax repayments will add a one-off £45,000 to the apply, and the nil rate band of £10,000 is still available. funds raised. • Gift aid has transformed the way the club For most sports clubs the corporation tax position is approaches fund-raising. not a practical problem, since they are too small. Others that go through the calculations may find that they do not Source: CCPR. significantly benefit from corporation tax exemptions, since little tax is currently payable. Major benefits of Tables 3 and 4 contain illustrative case studies of the CASC registration are, for most sports clubs, the new tax benefits that Woodford Rugby Football Club and effective giving regime and business rate relief.

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Community Amateur Sports Clubs – Important Tax Incentives!

Gift Aid club to do no more than break even with a request for a Individuals can make gifts to CASCs using gift aid. This voluntary donation on top, which will attract gift-aid results in benefits for both sides, a ‘win-win’ situation: relief. The voluntary donation principle can be used to • income tax relief is available for their gift, resulting in secure more funds for the club and tax relief for the a tax repayment for a higher rate taxpayer; and donor in other situations besides subscriptions: •a tax refund for the club itself. • “sponsorship” of individuals raising funds for the club, eg running in Marathons; Table 5 shows the benefits to the club and the • fundraising events, where the ticket price is set at a individual, and Table 6 shows the tax subsidy provided level to pay for the direct cost of the event, with a by Government. Clubs that can raise regular or one-off donation suggested on top; and donations should seriously consider registration. • auctions, where the Inland Revenue will accept that, if a price bid for an item that has a readily Table 5: Gift aid relief – illustrative net cost to ascertainable value, is in excess of that value, the individual donor excess can be treated as a donation. This donation will qualify for gift-aid relief (see booklet CWL4, £ published jointly by the Inland Revenue and HM ‘Gross’ equivalent 128 Customs & Excise – Fundraising Events: exemptions Income tax at 22% Recoverable by club (28) for charities and other qualifying bodies).

Paid by donor 100 The use of a voluntary donation does, of course, have commercial risks to the club, eg that person may Higher rate relief Recoverable by higher-rate taxpayer (23) not actually make it. If it is truly voluntary and there is no legal obligation to pay the donation, this should also Net cost to donor 77 not count as taxable fund-raising income for the purpose of considering the limited corporation tax exemption above. Table 6: Gift aid relief – tax subsidy

Higher Rate Basic Rate Business Rates Taxpayer Taxpayer The Local Government Act, which became law in September 2003, provides mandatory rate relief of 80% Net costs to individual 77 100 for CASCs that are registered with the Inland Revenue. Tax subsidy 51 67% 28 28% This came into effect on 1 April 2004. Some clubs (percentage of net cost) already benefit from discretionary relief up to 100% awarded on a case-by-case basis by the Local Authority. Received by club 128 128 Mandatory relief brings CASCs in line with their counterparts in the charity sector who have enjoyed this treatment for some time. Clubs that remain The timing of the payment is also, now, less of an unregistered will have to negotiate discretionary relief or issue. Historically, in order to qualify for gift aid relief in suffer normal business rates as before. an income tax year, the gift must have been paid within that year. However, as from 6 April 2003, a taxpayer can make a payment after the tax year has ended and How do clubs qualify as a CASC? before 31 January following the end of the year, and There are a number of conditions that have to be carry it back to the previous income tax year. satisfied for a club to qualify as a CASC. Broadly these There are other direct tax reliefs for CASCs, the are: major one being that individuals can also benefit from • The club must have as its main purpose the provision relief from inheritance tax on gifts to a registered CASC. of facilities for and promotion of participation in one This currently bites on estates valued at more than or more eligible sports. £263,000 at a rate of 40%. This means that a bequest • In terms of the activities that qualify, there are over of £100, will now cost £40 less than previously (being 100 eligible sports listed by the Inland Revenue and the IHT saving). generally follow the sports recognised by the Sports Unfortunately, subscriptions are not eligible for gift Councils. aid, although they may be set at a level that enables the • Membership of the club must be open to the whole

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community without discrimination and with · contain no dissolution clause or an invalid clause; affordable membership fees. The facilities should be · do not make it clear that the club is open to the available to all giving broadly the same treatment to whole community without discrimination; or less skilful and less competitive players. · do not state participation in sport as an objective; • Clubs must be amateur, which means that players or cannot be paid, but expenses can be reimbursed. A • the club does not participate in an eligible sport; or player/coach can be paid. • players are paid; or • Distributions to members are not allowed; surpluses • the organisation does no more than provide facilities must be reinvested in the club. Any net assets on for other clubs. dissolution must be applied for approved community sporting or charitable purposes. The Central Council of Physical Recreation (“CCPR”) • CASCs can have social members provided broadly website (www.ccpr.org.uk ) contains a useful proforma they are in a minority, and can also run bars as a social Constitution for a club that wishes to qualify as a CASC. adjunct to the provision of their sporting activities. CCPR are also taking up the issue of multi-sports clubs, some of which may presently find difficulty in CASCs must register with the Inland Revenue Sports registering. Clubs Unit in Bootle (previously in Edinburgh), see below as to how to do this, which administers and monitors the new system. The way forward Registration as a CASC represents a significant opportunity for local amateur sports clubs to generate Some practical aspects more funds for use in their communities. Whilst the The legislation has been in place for two years now. take-up was at first slow, the pace is now quickening. Experience of dealing with both clubs and the Inland The available tax reliefs can only be accessed after Revenue is building. In practical terms, clubs are run registration. This is simple to put into effect and, predominantly on a voluntary basis, and the registration generally, will not have any significant disadvantages process is designed to be simple and accommodating for unless at some stage members want to share in the voluntary officials. Application is made for CASC status to surpluses of the club. the Inland Revenue Sports Clubs Unit enclosing: It may be that the CASC ‘brand’ will be used by •a registration form with seven simple questions on it; Government to further encourage local sport. Other •a copy of the club’s governing document – this might be incentives may be provided in the future. It certainly is a Constitution, Rules or Memorandum of Association; the case that, if sport does not take advantage of this •a copy of the club’s latest accounts; hard-won initiative, it will find it more difficult to get •a copy of any prospectus, member’s handbook, rule direct funding from Government. book, etc. Richard Baldwin Applicant clubs will be informed when they have Lead Tax Partner become registered as a CASC and told the date from Sports Business Group at Deloitte which they are registered. Often the clubs’ existing governing documents do not comply with the scheme. Some clubs may initially be refused registration until This article has been written in general terms and is intended as a guide only. Its application to specific situations will depend upon the particular circumstances involved. they change aspects of their rules or Constitution Whilst all reasonable care has been taken in the preparation of the article, no (specific feedback will be given). Other clubs may be responsibility is accepted by the authors for any errors it may contain, whether caused refused registration on the basis of more fundamental by negligence or otherwise or for any loss however caused occasioned to any person by reliance on it. issues and asked not to reapply. There is an appeals process against decisions. Richard Baldwin is a member of the working party convened by the Department for The Inland Revenue website, www.inlandrevenue.gov.uk Culture, Media and Sport in 1999 to press for tax changes to encourage community sport. He continues that involvement now that the legislation has been enacted in terms contains details of how to register and also some of resolving particular issues arising from the implementation of the legislation and guidance notes. The application form itself contains promoting the scheme. some useful hints for the completion of the questions For more details about the Sports Business Group at Deloitte and to download your free and the reasoning behind them. copy of our brief guide to CASCs – Community Amateur Sports Clubs – The Tax Options To date, the main reasons that clubs are not – please visit our website at www.sportsconsulting.co.uk. qualifying for CASC status are because • they have old or outdated governing documents that:

35 Volume 12 Issue 2 Sport and the Law Journal Football’s finances – never far from the headlines

The Sports Business Group at Deloitte has been producing its annual analysis of football’s finances since 1991. August 2004 witnessed the issue of the thirteenth edition of the Deloitte Annual Review of Football Finance. Here we reproduce some thoughts from Dan Jones and Gerry Boon, partners in the Sports Business Group, about some of the current trends and, also, the financial overview given by their Highlights summary.

n the time since Deloitte first produced its Annual many cases been severely tested over the past three Review of Football Finance, we have celebrated the years. Yet, as we write, none of the top 92 English Icontinued spectacular growth in football’s popularity clubs has been permanently lost to insolvency. (attendances really started to pick up from the mid- 1980s), and the fact that the sport in England has How has this been achieved? comprehensively improved its image after the problems And what does it mean for the market going forward? of the 1970s and 1980s. The tide of money flowing into football has facilitated a transformation of English In some cases the remedy has been radical, stadia, and of the global appeal of the English game, fundamental restructuring of the balance sheet in that was unimaginable fifteen years ago. Administration. We have seen debt investors take a lot England has been in the vanguard of the advance for of pain to secure any kind of return. As a consequence, the concept of ‘the football business’ and its finances, institutional debt providers have joined most equity but much of what has occurred in England has been investors on the sidelines of football club finances. Any replicated in Europe’s other big football leagues. The future securitisations or major debt raising will – and question being asked now across Europe is whether should – be subject to much more rigorous due the wave that football has been riding is breaking, and diligence than was the case three or four years ago. might clubs hit the rocks? At the very least there are This mirrors the tightening of the equity markets – as some choppy waters to navigate. Our Annual Review football clubs’ financial performance disappointed after again charts the latest stage in football’s business the mid-1990s glut of flotations. In equity terms, we voyage in some detail. Before we get into the numbers, expect a continued flow of clubs delisting from the though, we consider some themes of current interest public markets, and increasingly robust pre-acquisition to the football business. due diligence by any private buyers of clubs. An emotional purchase it may be, but buying a club After the watershed without the business discipline of proper due diligence The football finance season covered by our review – is foolhardy. 2002/03 – was without doubt a difficult one. This, and Aside from balance sheet reconstruction, clubs have 2003/04, were years of painful adjustment. For almost also had to tackle their ongoing finances. If long term all Football League1 clubs, the collapse of ITV Digital capital is less accessible then the books must balance was a turning point, not just due to the direct impact on day to day. The most immediate sign of stronger club revenues but also the sea change in sentiment it financial management is the downturn in the player brought with it. It suddenly became apparent that the transfer market. This discretionary spending by clubs flood of money had ceased, and all clubs could not stay has largely halted – with the notable exception of those afloat and resulted in a number of clubs sinking into with very different financial circumstances, such as Administration. Even those which stayed afloat only did Chelsea, or the rare ‘star player’ transactions such as so by battening down the financial hatches. We have Wayne Rooney’s move to Manchester United. Clubs, commented before on the resilience of football clubs particularly in the Football League, had little choice but and the loyalty of their paying customers; this has in to drastically reduce costs, in the process reducing

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squad sizes and retaining whatever player transfer control and profitability in the football industry. Clubs receipts they could generate. Another influential change need to continue to convince the market that they can in the player market has been the relaxation of rules do this. The opportunity is there now to change the governing loan transfers. These give players the chance game in the player market as that market has tilted to shine elsewhere if they are surplus to requirements back, probably irreversibly, towards the clubs and away at their current club – and give cash strapped clubs an from most players and their agents. opportunity to improve their squads at reduced cost. The data is not yet available to analyse definitively the impact on club wages, but all the anecdotal Prime time – live and exclusive evidence points to a downturn, or at least a freeze, for Over successive editions of the Deloitte Annual Review most clubs, especially those outside the Premiership. of Football Finance we have commented on the impact The picture in Europe is even clearer than in England – that broadcasting has had on the football industry’s almost all continental clubs have, out of necessity, development. Broadcasting income has been the main locked down their spending. driver of revenue growth over the past decade. Indeed Nonetheless, high pay for the best players will broadcasting’s influence goes deeper still beyond rights continue. Football is an industry where a small number fees as the exposure and glamour draws in new fans of individuals are the key content (and therefore value) and attracts sponsors. Some fret over football’s reliance creators. These key players have a high market value. In on TV money and foresee a collapse in incomes. We other ‘people’ industries, such as some City are more sanguine, but occupations, similar salaries and a ‘star’ culture are the The bigger risk to not complacent. norm. We are seeing a continuing widening gap in football’s finances Broadcasters and football contract terms between star players (who are likely to enjoy a symbiotic command high value, long term contracts), and other is from ill-judged relationship. squad members (who are much more likely to receive interference in the As much as football shorter term, less lucrative deals). relies on Pay-TV’s cash What we would like to see – as progress has been broadcast market investment into the sport, generally slow in this area – is a far greater performance for football from Pay-TV uses football to related element introduced into all contracts (as is the drive up and sustain case in the other industries mentioned earlier). This is regulators. It would subscriber numbers. The fundamental to the financial stability of the clubs – and be wrong to try and fact that more mature may also have motivational benefits to drive on-pitch Pay-TV broadcasters are performance. We accept though that ‘game theory’ is at use football as the focussed on increasing work here. Collectively, the clubs have an interest in tool to shape the average revenue per keeping basic wages low and increasing the importance subscriber to achieve of performance related elements. But, individually, it European profit growth does not appears that clubs still try to seek an edge, and pay a broadcast market.” alter that; their challenge little more. It only needs a few clubs to raise the stakes would be even harder if for the majority to follow to try and keep up. The market they lost subscribers. While we have seen a correction for playing talent is fiercely competitive and historically in rights values, particularly for ‘second tier’ rights, after that has driven out all the profits. Football still needs to the speculative phase of three or four years ago, show – as other industries reliant on talent recruitment premium rights have held their value. The overall value and rotation have – that it can generate a return for generated from the recently concluded sales of FA capital as well as labour. Premier League broadcast rights, for example, remains Overall, we see the changes in the accessibility of broadly similar to that generated in 2000, with the slight the capital markets as permanent for most clubs, and reductions in domestic rights being partially offset by an very long term for the remainder. Economic, rather than increase in revenue from overseas rights. The market emotional, investor interest in the sector will take time for top football content remains strong. to recover and will only follow strong evidence of cost The bigger risk to football’s finances is from ill-judged

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Football’s finances – never far from the headlines

interference in the broadcast market for football from previously never won a game in a major finals, as regulators. Regulators will obviously watch with interest European champions. as one leading Pay-TV broadcaster emerges in many That is the beauty of the game – football remains a European broadcast markets. The regulators are game of eleven versus eleven and nothing is certain. naturally concerned about the possible impact of this on This makes it a tough business to manage – plans will the marketplace and, in particular, consumers. go awry – but it is the same magic that draws in the Nonetheless it would be wrong to try and use football fans and generates the value. That the past few months as the tool to shape the European broadcast market. have shown football still has that magic is of great Football is making great efforts in disaggregating its benefit to the sport in business terms. rights portfolio into smaller packages and different windows (including carving out packages for emerging Dan Jones & Gerry Boon technologies) to promote competition and innovation. Partners – Sports Business Group at Deloitte For example, Video-on-Demand, Broadband and mobile telephony rights all have medium to long term potential For more details about the Sports Business Group at Deloitte – to challenge the importance of live TV rights as a please visit our website at www.sportsconsulting.co.uk. delivery platform. A particular area of concern to football is any further regulatory attempt to artificially prevent Note: The topics included in 2004’s Deloitte Annual Review of Football Finance cover all the key areas exclusivity by, for example, forcing individual selling by to gain an overview of football’s finances. Europe’s premier leagues documents England’s leading clubs. This is a recipe for disaster – not just for position in European football (in off-the-pitch terms) and provides a detailed review of key developments overseas. The Profitability of English clubs and Player costs – wages and transfers broadcasters and football clubs but also for fans and sections again form the backbone of Deloitte’s review of the English situation. They aim to provide not only a track record up to the end of the 2002/03 season, but also include some pointers on industry consumers. Fortunately in the recent cases involving developments in 2003/04 and beyond. Stadium development discusses an area of English clubs’ key competitive advantage and continuing developments therein. In Financing the clubs, Deloitte look at UEFA’s Champions League rights, the FA Premier the balance sheet of Premiership clubs and the aftermath of a spate of insolvencies amongst Football League and, most recently, the Bundesliga, we have League clubs. Deloitte’s new addition this year is a review of ‘Football and tax’. Finally, the Appendices again provide the most comprehensive collection of financial, statistical and reference data on the seen strong signs that sense will prevail. We are football business. pleased regulators now apparently recognise collective The basis of preparation for Deloitte’s review, guidelines for interpreting the information provided and selling as the glue that holds football together. some notes on the limitations of published financial information, are set out in the document itself. A review of this nature cannot provide detailed answers to your football business issues – if a business, commercial, financial, tax or accounting issue arises, we suggest you consult your professional advisers.

Tales of the unexpected Highlights of the Deloitte Annual Review of Football Finance Consider the key points noted above: wary capital Follow on the opposite page. markets, no new funds at most clubs to spend on players, and a levelling off of the broadcast market. All these pressures are being felt most by those clubs outside the elite. So, what is the impact, where it matters, on the pitch? Over the last couple of years we have heard an increasing body of opinion that football is getting ‘stale’. This perception is one of increasing certainty of outcome in football, with teams likely to finish in more predictable positions and the development of a series of mini-leagues within leagues. The hypothesis is that – as the business side of football becomes increasingly paramount, it seems perhaps inevitable that those with deepest pockets will succeed. There is, of course, some strength to that case. However, in Serie A the ‘flying donkeys’ of Chievo Verona, in 2003/04, finished in the top ten for the third successive season, ahead of some of their more illustrious (and wealthy) neighbours. Closer to home, 2003/04 saw Charlton finish in 7th place in the Premiership, while Millwall reached the FA Cup Final. Still more impressive – and unpredictable – was Porto’s Champions League victory in a final with Monaco, which was not foreseen at this time last year. To cap this off Euro 2004 delivered Greece, who had

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Highlights

Europe’s premier leagues • Each of the ‘Big Five’ leagues has experienced the •Total income generated by the top divisions of the regulator’s influence on their media rights selling ‘Big Five’ leagues was €5.6 billion in 2002/03. This strategies in recent seasons. The industry should be was a 7% increase on the previous season and a wary of assuming any particular judgement or ruling near tripling of income since 1995/96. from another league or ‘market’ will apply universally as each situation is unique. Whilst recognising the • Each of the ‘Big Five’ top divisions experienced regulator’s well meaning intentions, football must revenue growth in 2002/03, with the English continue to ‘sell its case’ regarding the specific Premiership enjoying the largest growth, therefore benefits it’s arrangements bring – in solidarity widening the gap between it, the highest revenue between clubs and a coherent product for fans, to generator at €1.8 billion, and the Italian Serie A, the name but two. second highest earner at €1.2 billion. France’s Ligue 1 generated the lowest revenue of the five top • The Bundesliga’s average attendance was 35,048 in divisions with €689m. 2003/04, the highest amongst the ‘Big Five’ leagues, and the first time since 1998/99 that the English •Broadcast income remained the most important Premiership hasn't been the highest. Despite this, revenue source for all ‘Big Five’ leagues in 2002/03 the Premiership’s average stadium utilisation was with Serie A the most reliant, where the revenue 95% compared to the Bundesliga’s 78%. stream contributed 55% of total income. The German Bundesliga was the least reliant on broadcast income at 33%, having dropped from 40% in 2001/02 due to Profitability of English clubs the collapse of the league’s broadcasting deal. • In 2002/03 the 92 top professional clubs generated total revenue of £1,658m – up 4% from 2001/02. •Total wages and salary costs for the ‘Big Five’ top divisions stabilised at €3.6 billion in 2002/03, • The total revenue of Premiership clubs was approximately equal to the previous year’s total. £1,246m, up 10% on 2001/02 (£1,132m) maintaining the League’s position as the ‘European and world •Two leagues, Serie A and the Bundesliga, achieved a champions’ in terms of revenue generation. decrease in wages and salary costs compared to the previous year, the first time during the period • The loss of ITV Digital monies resulted in total analysed that any league has exhibited a year on year Football League clubs’ revenue falling by 12% to decrease. As a consequence Italy’s wages to £412m – the majority of the drop occurring in turnover ratio has dropped from 90% to 76%, whilst Division One (down 14% to £255m). Germany had the lowest ratio at 45% • Manchester United headed the Premiership ‘revenue • The variation in operating profit performance league table’ at £175m, followed by Liverpool and between the four leagues analysed is vast. The Arsenal (both at £104m). At the other end of the English Premier League has recorded cumulative table was West Bromwich Albion (£28m). In operating profits of €930m since 1995/96 – the 2002/03, the average Premiership club generated most of any league; Serie A has recorded combined revenue of £62.3m. losses of €1.2 billion over the same period. Encouragingly, whilst England and Germany showed •Premiership clubs’ matchday income increased to increased profits in 2002/03, Serie A and the French £363m – driven by a 3% increase in Premiership Ligue 1 also halted a worrying increase in the scale attendances, more European matches and increased of losses over the previous two years. ticket yield.

• The estimated broadcast income from ‘Big Five’ • Commercial revenue was almost unchanged, at league domestic live and highlights deals in 2002/03 £340m in total, in part reflecting the tough market for was €1.8 billion although the changing broadcast sponsorship and advertising. landscape in several countries has affected rights values. There is a disparity in the capacity to earn broadcast income between clubs within the same league, which is exacerbated in those leagues where clubs sell rights individually.

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Highlights

• The Premiership clubs’ largest source of revenue • Manchester United were again top in terms of came from broadcasting – 44% of the total at operating profit. Their profit of £47.8m increased £543m. Looking back a few years, broadcasting was their Premiership record (previously £34.5m in the smallest revenue source. In 1996/97, 2001/02). Furthermore, their cumulative 5 year broadcasting monies were less than £100m, operating profits of £174m were well over three representing just 21% of Premiership clubs’ total times those of their nearest rival – Newcastle United revenue and, in 1991/92, were less than 10% of at £52m. revenues at a mere £15m.

• In the 2003/04 season just ended Premiership clubs Player costs – wages and transfers are estimated to have generated turnover of £1.33 • In the 2002/03 season, Premiership clubs’ total billion, which we forecast will increase further to wages and salaries (i.e. not just players’ wages) £1.36 billion by 2004/05. grew by 8% to £761m, the lowest rate of increase since the formation of the Premier League, and well •Premiership clubs reported overall operating profits below the average annual increase of c.25% over the of £124m – a record high since the formation of the previous ten years. Premier League and a healthy 10% margin – with 16 of the clubs making operating profits. By contrast, • The 15 clubs for whom we have accounts and who pre-tax losses rose to £153m and only five of the were in Division One in both 2002/03 and in 2001/02 clubs made a pre-tax profit. saw total wages and salaries drop by 2%. For the division as a whole however, the wage bill grew • The apparent paradox – of a record level of slightly to £228m (a 6% increase). Lower down the Premiership clubs’ operating profits and pre-tax pyramid, total wages and salaries amongst clubs in losses in the same year – is largely the product of Divisions Two and Three declined in absolute terms. high player amortisation costs (a legacy of high transfer spending in the past) and much reduced •With some notable exceptions, it appears that clubs profits on player disposals (as transfer spending was have also been relatively restrained, in terms of much reduced in 2002/03). wage increases, in the 2003/04 season.

• Contrary to the speculation from some • The ratio of total wages to turnover – a key financial commentators that media values might collapse, the performance indicator in football – for the average deals announced so far by the Premier League, and Premiership club fell to 61% in 2002/03 (2001/02: press comment about other deals yet to be 62%). West Bromwich Albion, Manchester United announced, indicate that monies to Premiership and Newcastle United all had ratios below 50%. The clubs for the next period should be in line with the equivalent ratio for Sunderland, Fulham and Leeds previous broadcast deals. United was over 80% in each case.

• The four English clubs competing in the Champions’ • The surplus of Premiership clubs’ turnover over total League in 2002/03 – Manchester United (to Quarter wages was at a record high of £485m (2001/02: Final), Arsenal (2nd round group stage), Newcastle £426m). United (2nd round group stage) and Liverpool (1st round group stage) – received approximately £49m • The average total wages and salaries cost for a from UEFA between them. Premiership club in 2002/03 was £38m (2001/02: £35m). Manchester United had the highest total • The gap between the Premiership and Division One wages costs (as was the case in 2001/02) of £79.5m grew again in 2002/03, with the average Premiership and the lowest was West Bromwich Albion club having revenue almost six times greater than its (£11.5m). Division One counterpart. • As in the previous season, in 2002/03 there were • The 2004 prize for Crystal Palace winning promotion five Premiership clubs with a total wages cost (not to the Premiership (even if the club ‘yo-yo’s’ straight just players) over £50m – Manchester United back down) was around £35m – making the Division (£79.5m), Arsenal (£60.6m), Leeds United (£56.6m), One Play-Off Final the ‘richest game on earth’. Chelsea (£54.4m) and Liverpool (£54.4m).

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• Unfortunately, the reduction in turnover – which was •Over the 12 year life of the Premier League, somewhat outside their control – for clubs in Premiership clubs have provided a total of around Divisions One and Two was greater than the amount £600m in transfer fees to Football League clubs. by which clubs managed to reduce their wages and salaries costs. Hence, the overall wages to turnover • Since the end of the 2002/03 season, transfer ratio in each of those divisions increased in 2002/03 spending by Football League clubs has continued to to 89% and 85% respectively. be minimal. Clubs are no longer prepared to, nor need they, spend significant sums on acquiring • The average wages to turnover ratio for clubs in player registrations. As we predicted, the 2001/02 Division Three – the least affected by ITV Digital’s season was a watershed and the subsequent demise – reduced to a more sustainable level of financial results demonstrate that the market has 68%. This improvement appears to have been changed. further reinforced in 2003/04, the first season of implementation of the ‘salary cost management • The January 2004 transfer window spending by protocol’, that is to be extended to Division Two Premiership clubs was estimated by Deloitte at clubs from 2004/05. under £50m, and non-English clubs barely spent at all (less than £10m across Italy, Spain, Germany and •Total payments in respect of players (wages plus France). transfers) have fallen by 5% to £852m. This is a monumental change – the first recorded year on year • The summer 2004 transfer market has continued the decrease in player spending since we started trend from the January 2004 transfer window, with producing the Annual Review 12 years ago. transfer activity remaining relatively muted even after Euro 2004. • The total of transfer fees committed by English clubs in 2002/03 (of £203m) was down 50% on the total in the previous season (2001/02: £407m). Stadium development •Total spending by English clubs on stadia and • The total of transfer fees committed by Premiership facilities in 2002/03 was £176m, taking the total clubs in 2002/03 (of £187m) was down 42% on the investment in the post-Taylor era to over £1.6 billion. total in the previous season (2001/02: £323m) and transfer spending by Football League clubs fell • Spending by Premiership clubs on stadia and dramatically from £84m in 2001/02 to only £16m in facilities was 2002/03, a decrease of 81%. £133m in 2002/03. This was the sixth successive year when facilities investment by Premiership clubs • The most significant change in 2002/03 was the exceeded £100m and brings spending, since ‘Taylor’, reduction in the amount of money spent by to almost £1.2 billion. Premiership clubs on buying players from non- English clubs. In 2001/02 transfer spending by • Arsenal was, by far, the club who invested most in Premiership clubs with non-English clubs was down facilities in 2002/03, comprising £80m of the £176m 48% to £101m (2001/02: £195m), thereby keeping total. Arsenal is expected to stay at the head of the more money within the English game. investment list until completion of Ashburton Grove – which is planned in time for the 2006/07 season. • Of the £187m committed by Premiership clubs, a net £32m was re-distributed to Football League clubs – this • In 2002/03, average attendances at Premiership is almost double the £18m re-distributed in 2001/02. matches topped the 35,000 mark – the largest top division average since the 1950/51 season, and a 3% • Significant transfer spending by Chelsea over the increase on the previous season. Overall capacity past year – reportedly over £120m (aggregate of utilisation rose to 93.8%. summer 2003 and January 2004 windows) – means we expect that total transfer spending by • Largely due to a change in the ‘mix’ of clubs, the Premiership clubs in 2003/04 will have risen again, to average Premiership attendance in the 2003/04 around £260m. However, this is still well below the season just ended fell back a shade to 35,008, peak of £364m in 2000/01, which is unlikely to be although capacity utilisation improved further to exceeded again. 94.7%.

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Highlights

• The total capacity of Premiership stadia in 2003/04 finances since their last annual financial statements. (of 739,000) is 89,000 (14%) greater than six years ago (1997/98: 650,000). • At summer 2003, Manchester United (£157m) topped the table for net assets, more than double • Whilst capacity utilisation now stands at 94%+, their nearest rival (Arsenal – £76m). Overall net Deloitte estimate that there was still around £19m assets for Premiership clubs were £345m. worth of empty seats at Premiership matches in 2002/03 and around £16m in 2003/04 – a further • Amongst Division One clubs, bank borrowings opportunity – along with more sophisticated pricing (£115m; 57% of capital employed) are a relatively of existing sales – for the application of yield more important source of financing than for management techniques to maximise revenues. Premiership clubs (£186m; 18% of capital employed). • Football League attendances totalled 15.9m in 2003- 04, a 7% increase on the previous season. •A record number of clubs entered insolvency Aggregate attendances for the three divisions below proceedings during 2002 and 2003 (seventeen the top flight are now at their highest level since Football League clubs in total). As we predicted, the 1963/64 and more than double the aggregate crowds Football League has come through a particularly for these games in the mid 1980s. The average challenging couple of years with a full complement Division One attendance in 2003/04 was 15,890, a of clubs intact (just!). healthy 45% of the size of the average attendance at a Premiership game. • Division One clubs had a deficit in shareholders’ funds of £78m at summer 2003, compared to a surplus of £37m the previous year – a ‘swing’ of Financing the clubs £115m. This is largely due to the change in mix of • There was £1.05 billion of total ‘Capital Employed’ clubs between seasons and losses in the 2002/03 amongst Premiership clubs in summer 2003. Only season. 18% was from bank borrowings – bank loans and overdrafts, net of cash at bank, was £187m. Total • There is an increased air of financial realism at borrowings were £704m, such that the overall Football League clubs. Better financial management gearing ratio (of debt to shareholders’ funds) was is being further encouraged and supported by 204% (2002: 137%). structural changes such as sporting sanctions for insolvency, limits on wage spending, parachute • Over recent years, several Premiership clubs have payments between the divisions of the Football used alternative financing mechanisms – in particular, League and division dependent pay levels for players. securitisation of ticket receipts and specialised player financing methods – to supplement traditional • There is an increasing amount of supporter finance sources. Generally, these monies are involvement in the ownership and operation of clubs, included in other loans, which stood at £505m for particularly below the Premiership. Primarily this has Premiership clubs at summer 2003. The flow of such been driven by the supporters’ trust movement, that deals appears to have ‘dried up’ in 2003. has contributed over £2m of fundraising to clubs in 2002/03. While this amount itself is relatively small, • Net Interest charges from finance providers in the overall context; the principle, and increased to £44m (2001/02: £30m), but interest achievements, of supporters trust involvement has cover remained in excess of 21/2 times. had a big impact. A strong relationship between club and community is also good for business. • Dividend payments to shareholders were a modest £14m (2001/02: £11m).

• At summer 2003, Fulham (£133m) topped the table for net debt, albeit £91m of the balance was ‘soft’ loans. The next two clubs in the table of net debt were Leeds United (£78m) and Chelsea (£75m). In both cases, albeit in rather different circumstances, there has been a restructuring of each club’s

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Basis of annual review & interpretation of appendices Football and tax Basis of preparation Our review of the financial results and financial position of English football clubs, and comparisons • The football industry continues to generate between them, has been based on figures extracted from the latest available company or group statutory financial statements – which were either sent to us by the clubs or obtained from Companies substantial tax receipts for Government. Clubs in the House. top four divisions of English football paid around Our review of the financial results and financial position of various European Leagues, and comparisons £550m of tax to Government in 2002/03. between them, has been based on figures extracted from the company or group financial statements, information contained in publications by other country practices of Deloitte Touche Tohmatsu or from information provided to us by national associations/leagues. • The estimated annual tax take of around £550m is In relation to estimates and projections, actual results are likely to be different from those projected almost four times greater than in 1995/96 (£149m). because events and circumstances frequently do not occur as expected, and those differences may be material. Deloitte can give no assurance as to whether or how closely the actual results ultimately And, the tax burden is increasing – the rate of achieved will correspond to those projected and no reliance should be placed on such projections.

compound annual growth in the tax take (21%) Availability of financial information regarding football clubs exceeds the rate of growth in football’s income For the 2002/03 season there were twenty three clubs, in the ‘top four divisions’ of English football, for whom financial statements were not available to us at June 2004. (18%) over that period. Any clubs for which 2002/03 accounts are not available to us have been omitted from the analysis. Divisional totals have been ‘grossed up’ – in general by using the relevant averages for the division – • The Premiership clubs are estimated to have paid to represent the full divisional total for comparison purposes (from year to year or between divisions). Where necessary, the aggregate divisional totals for European Leagues have been ‘grossed up’ in a around £394m in tax (PAYE/income tax; National similar manner.

Insurance; VAT and corporation tax) in 2002/03. Limitations of published information As noted above, our review has been based on figures extracted from company or group financial statements. This results in occasional difficulties in directly comparing clubs due to: • During the 12 year life of the Premier League, • The different levels of disclosure, due to the inherent limitations of relying on published accounts – Premiership clubs have provided a total of around some of which for smaller clubs are in the form of abbreviated accounts – and information £2.5 billion of tax receipts for Government. The total provided by clubs, particularly on the split of turnover and their commercial activities; contribution by clubs in the top four divisions, over • The increasing diversity of activities carried out within some companies/groups, many of which are, that same period, is over £3 billion. but some of which are not by virtue of size/nature of activity, incidental/ peripheral to the core football business; and

• The accounting policies adopted by clubs and how such accounting policies are applied in practice, • The substantial tax contribution, together with the which can vary significantly. For example, differences in stadium depreciation policies can have an investments by clubs into grassroots and social impact on reported profitability. initiatives, mean that the clubs are a significant In a few cases we have made reclassification adjustments to the disclosed figures to enable, in our view, a more meaningful comparison of the financial results of the football business on a club by club contributor of funds for the wider public benefit, basis. We have not performed any verification work or audited any of the information contained in the estimated to be over £600m for 2002/03. statutory financial statements for the purpose of this report. The aggregated results shown in the report for the clubs in the top four divisions of English football are not a true consolidation exercise because transactions between clubs, such as the transfer of player registrations, are not eliminated.

Figures for 2001/02 have been restated, from those disclosed in last year’s Annual Review of Football Finance, for those clubs who have restated the comparatives in their later sets of accounts.

Divisional totals The totals, for both years, for each division in Appendices 1-4 are for the clubs which comprised that division in the 2002/03 season. Where comparisons have been made, in the review itself, of League or Divisional totals, we have used – for 2001/02 and earlier seasons – the relevant totals for the divisional composition in that season.

Wages and salaries The published financial statements of clubs rarely split wages and salaries costs between playing staff and other staff. Therefore, the great majority of references in this review to wages and salaries relates to the total wages and salaries for a club/division, including playing and non-playing staff.

Exchange rates For the purpose of our international analysis and comparisons we have converted all figures into Euros using the exchange rate at 30 June 2003 (£[email protected]).

43 Volume 12 Issue 2 Sport and the Law Journal Sports Law Foreign Update

Compiled by Walter Cairns 6. Administrative law Senior Lecturer in Law and Languages Planning law 73 Manchester Metropolitan University Judicial review (other than planning decisions) 73 Other issues 73 The Current Survey of the Sport and the Law Journal has hitherto provided an update on general developments in 7. Property law (including intellectual property law) the field of sports law, both at home and abroad. Land law 74 However, this is a task which has fallen exclusively Intellectual property law 74 on one pair of shoulders, and has become increasingly Other issues 76 difficult to complete without endangering the author’s health and sanity. 8. Competition law This is why it has been decided that this column will National competition law 77 henceforth concentrate on developments abroad. The EU competition law 77 term “abroad” is understood to have the broadest possible meaning, in the sense that it will not exclude 9. EU law (excluding competition law) 78 home developments where international events have an impact in this country. The structure will remain virtually 10. Company law (including sports associations) unchanged from the formula hitherto adopted, namely: Bankruptcy (actual or threatened) of 84 sporting clubs & bodies 1. General Other issues 84 Conferences, meetings, lectures, courses, etc. 45 Obituaries 45 11. Procedural law and Evidence 85 Lawyers in sport 45 Digest of other sports law journals 45 12. International private law 85 Sport and international relations 46 Other issues 52 13. Fiscal law 85

2. Criminal law 14. Human rights/Civil liberties Corruption in sport 53 (including race and gender issues) Hooliganism and related issues 55 Racism in sport 86 “On-field” crime 58 Human rights issues 86 “Off-field” crime 61 Gender issues 86 Other issues 64 Other issues 87

3. Contracts (including employment law) 15. Drugs legislation and relates issues Media rights agreements 65 General, scientific and technological 88 Legal issues arising from transfer deals 65 developments Employment law 65 Doping issues and measures – 89 Sporting agencies 66 international bodies Sponsorship agreements 66 Doping issues and measures – 89 Other issues 66 individual countries Doping issues – 90 4. Torts and insurance individual sports Sporting injuries 67 Libel and defamation issues 68 16. Family Law 94 Insurance 68 Other issues 69 17. Issues specific to individual sports (including disciplinary proceedings) 5. Public law Football 95 Sports policy, legislation and organisation 70 Cricket 95 Public health and safety issues 72 Nationality, visas, immigration and related issues 72 Other issues 72

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Conferences, Meeting, Lectures, defrauding his club of over £40 million. As a result, he Courses, etc. was banned from mayoral office for 28 years, and was also found guilty of using Atletico in order to further his Belgian debating forum on the Voetbalwet political interests. In a later case, he was jailed for a (Law on Football) term of three years. As has been the case in most countries where football attracts a considerable following, Belgium has in recent Ratu Sir Kamisese Mara years been compelled to issue legislation aimed at The colourful Prime Minister and President of Fiji, who securing the safety of all those involved in the game. died in April 2004, had a notable sporting achievement On 11/5/2004, the Fortis Bank Antwerp organised a to his credit in 1956 when he led the Fijian cricket team debating forum on this subject, in co-operation with the to victory over Denis Atkinson’s West Indians in a one- 2 University of Antwerp. The occasion was the fifth day fixture in Suva . anniversary of the entry into effect of this legislation. (Also on the subject of the Voetbalwet, see below, p.57 under the heading “Hooliganism and related issues”). Lawyers in sport [None] Obituaries Digest of other sports law journals Jesus Gil1 Spanish football has always been surrounded by an Recent issues of Zeitschrift für Sport und Recht 3 array of colourful characters. Prominent amongst these In the second issue for this year , this German sister as been Jesus Gil, property tycoon and populist Mayor journal features in the first instance an article examining of the seaside resort of Marbella who was also the the legal relations between the sporting performer and flamboyant president of the top Spanish side Atletico his manager. The authors, Ilkin Karakaya and Bernhard Madrid. Kretschmer, seek to establish whether in fact this Although extremely popular with the club’s relationship does not constitute an arrangement which supporters, the publicity which he attracted was not infringes public morality. It is from this angle that they always of the most fortunate type. Many top managers analyse the various legal issues arising from the joined and left Atletico in rapid succession, and Mr. Gil contracts which underlie this relationship, such as was frequently the subject-matter of disciplinary exclusive dealing agreements, as well as the general measures taken by the Spanish football authorities for rights relating to the performer’s personality and his/her his overt reactions to some refereeing decisions. marketing potential. It is particularly in relation to the Mr. Gil embarked on his business career by trading in duration of the contract and the transfer of players that, vehicles. His political career went hand-in-hand with his in the authors view, principles of public morality are progress as a businessman, in that the former began as being infringed in individual cases. a means of facilitating the latter, more particularly his In “The initial imposition of a sporting federation various property deals. When he experienced the penalty by arbitration courts acting as organs of the Socialist council in Marbella as an obstructive force, he federation” Bernhard Reichert examines the underlying established a new political party, called the Grupo problem in the light of recent decisions on the subject, Independiente Liberal (GIL) and sought election as more particularly a ruling recently issued by the Sports Mayor in 1991. He won a famous victory on the Arbitration Court of Frankfurt. The author asserts that, strength of his pledge to reduce crime rates and build according to the existing case law and the opinion of cheap housing, and served for over a decade. leading writers, the constitution of a sporting federation Once elected, the name of the resort over which he may only confer on an arbitration court the power to presided started to be featured on the shirts of review such penalties as have already been imposed by Atletico’s players. This connection was one of many the federation, and that the same applies to other legal controversies which later would return to haunt him. In disputes arising from the federation’s activity. The court 1998, an inquiry was launched into his business affairs, decisions on this issue indicate clearly that an arbitration and the following year he was detained by the court may not exercise the federation’s disciplinary authorities following accusations of diverting the club’s powers acting as an organ of the federation. finances into Marbella’s coffers. He was, however, The author Harald Schießl examines the liability released on bail within a week. The actual trial occurred incurred by the Chairman of a sporting club for the in 2000, and was based on charges which included latter’s fiscal obligations, following a recent decision by

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the German Federal Court of Taxation contests refuse access to those seeking to broadcast (Bundesfinanzhof). Club boards very often brief news reports on the event. Under Article 5 of the underestimate the strict implications of income tax State Broadcasting Agreement (Rundfunkstaatsvertrag) liability. This has prompted the author to describe the the right to broadcast brief news reports is restricted to extent of the club boards’ liability in this respect and to television broadcasts. The author pleads in favour of an sketch out a number of strategies aimed at limiting its extension of this right to radio broadcasting. In the next effects. This is followed by an article authored by contribution, Wulf Hambach examines the current state of Gregor Reiter, who examines the question of whether the case law on the lawfulness of privately organised players’ licences in semi-professional football should be sports betting, in the light of the European Court of included in the clubs’ balance sheet. This is a highly Justice decision in Gambelli and the a recent judgment of topical issue, since the European Commission is the Bavarian Court of Appeal. The author analyses the currently investigating certain accounting practices of lawfulness of the restrictions imposed by the state on the football clubs in connection with the state aids given to sports betting market, and points to the policy adopted by Italian clubs in the shape of the Law on Debt Deferrals. the ECJ since 1999, namely that only urgent The author arrives at the conclusion that players’ considerations can justify any restrictions on the licences are marketable commodities. Consequently, lawfulness of betting. The author claims that these urgent their current position in relation to the balance sheet is considerations were not present in the case of the unlawful since it infringes the principle of creditor Bavarian Court of Appeal decision, when compared with protection laid down in the Commercial Code the leading decisions of the civil and administrative courts. (Handelsgesetzbuch) and as such distorts competition. Finally, Anne Jakob examines the liability for injuries Finally, Regine Reim, a practising lawyer, describes the sustained by top sporting performers as a result of emergence of a body of sports law in the countries of mistaken decisions on their ability to play. There are a Central Asia, focusing more particularly on Kirgistan. number of cases in which players have been injured She arrives at the conclusion that the increasing during top sporting competitions and for whom there commercialisation of sport should enable issues of were significant differences of opinion amongst the sports law to be settled in all legal cultures and to doctor, the manager and the federation. The author become the subject-matter of official regulation. considers it necessary to establish a clear demarcation 4 In the third issue for 2004 , the author Rainer between the responsibilities of the relevant consultants Cherkeh concerns himself with the tensions which may and decision-makers in this field. In addition, there arise in the relations between sporting clubs and their needs to be an examination of the factual key performers, more particularly the rule that circumstances attending each individual case in order to participation in top sporting competitions is dependent arrive at appropriate conclusions as to whom should be on the conclusion of a sporting performer’s contract adjudged to be liable. (Athletenvereinbarung). This is the practice known as Kontrahierungszwang (obligation to contract), and the author examines the question whether this obligation Sport and international relations can be justified taking into account the various conflicts which may arise in this regard, in particular the way in “Zimbabwean question” continues to cause which this can reduce the athlete’s marketability. The havoc in cricketing world author Andreas Sauer then analyses the competition Readers will recall from previous editions of this Journal law aspects of the way in which television rights to the that the participation of Zimbabwe in the world of German Football League (Bundesliga) are centrally international cricket has increasingly come under strain, marketed. The author examines, in the light of the in view of the serious human rights abuses which have planned exemption of the German Football Association been common practice in that country over the past from the rule prohibiting cartels, the problems which decade. It will be recalled that the English cricket team arise from this situation, taking into account the various decided that their World Cup fixture with Zimbabwe in possibilities which exist for the marketing of early 2003 should not go ahead, with serious financial broadcasting rights. The question whether this practice consequences for the England and Wales Cricketing 5 is contrary to competition law is examined in the light of Board (EWCB) . Other parts of the cricketing world have Article 81 of the EC Treaty. The author reaching the also engaged with this issue, to the point where the conclusion that central marketing of these rights future of Zimbabwe’s participation in the game has remains an infringement of competition law. become seriously endangered. Next, Michael Winter examines the problems arising The immediate focus was the tour of Zimbabwe by from the practice whereby the organisers of sporting the England team which was planned to take place in

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the autumn of 2004. It was known that many of the “if we do not make a stand, we believe that players, as well as sponsors, had grave doubts about incalculable damage will be done to the game. We the tour, and that the British Government was opposed believe that politics should play no part in sport to it. However, as a result of a change in the rules of and that the ZCU has fallen prey to a small clique the International Cricket Council (ICC) cancellation of the of people who do not have the interests of cricket tour could mean a fine of £1.1 million for the England at heart but are simply motivated by non-sporting team, as well as suspension from international cricket considerations. We believe that we have no option for failure to meet their obligations. It was also feared but to collectively stand up for our principles. that preventing the tour from going ahead would Unless we take action, the cancer that is eroding 6 13 endanger London’s bid for the Olympic Games in 2012 . the game in Zimbabwe will not be dealt with” The only hope for the EWCB seemed to be to persuade the ICC that the British Government’s opposition to the Even though initially it seemed that the ZCU were tour could be covered by the force majeure clause in prepared to make certain concessions, negotiations the ICC regulations; however, this plea was felt to be between the ZCU and the leading players collapsed. As a unlikely to succeed. result, the 13 signatories to the statement referred to As a result, the EWCB became increasingly reluctant above made themselves unavailable for the forthcoming to contemplate cancellation. Instead, it would offer the one-day fixture against Sri Lanka. As a result, the national players the option of withdrawing from the tour, side took the field with seven uncapped players and only removing advertising logos from the players’ kit as a four who could possibly claim to make the first team in result of the opposition to the tour expressed by merit. The leading players were hoping that the expected sponsors Vodafone, and offering minimal co-operation humiliation of the team in that match could prompt a 7 14 with official commitments on the tour . Several days rethink on the part of the ZCU . The ZCU also threatened later, EWCB Chairman David Morgan confirmed that the to sue the leading players for breach of contract if they 15 Board had abandoned any notions of cancelling the tour, failed to report for practice . The 13 players failed to turn unless the Government officially directed them up, as a result of which the Board initiated legal differently or there were sufficient safety concerns to proceedings. The players responded by taking out legal 8 justify cancellation . proceedings of their own, also based on breach of Meanwhile in Zimbabwe itself, trouble was brewing contract. The two parties were given 21 days in which to between the Zimbabwe Cricket Union (ZCU) and the settle their differences, failing which the matter would be 16 nation’s leading players, when the ZCU announced that dragged into the courts . In the meantime, two more the captain, Heath Streak, had been removed from his players, Charles Coventry and Gavin Ewing, had had their position. This followed criticism made by Mr. Streak of contracts terminated by the ZCU after pledging their 17 the composition of the five-man team national selection allegiance to their rebellious colleagues . 9 panel . More particularly he had expressed the opinion The dispute took on a new dimension a few days that the panel should be reformed to consist of later, when it was revealed that three black players, members who had experience of first-class cricket. This Douglas Hondo, Dion Ebrahim and Mluleki Nkala, were sparked off a furious reaction amongst the other also giving serious consideration to their future as 18 players, who set the ZCU the ultimatum of reinstating members of the Zimbabwean Test and one-day squads . Streak or face a mass resignation by virtually the entire Three delegates from the ZCU, Peter Chingoka, 10 first-class team . Although the ZCU Board gave a Alwyn Pichanick and Ozias Bvute, travelled to London in tentative undertaking to examine the composition and order to explain their role in the dispute to the EWCB. structure of the selection panel, they were unmoved on The Zimbabwean representatives emphasised to the the subject of Mr. Streak. Ten members of the side EWCB that Zimbabwean cricket would face serious were dismissed when they failed to report for provincial financial problems if the Board decided to cancel the 19 fixtures, despite having had their absence sanctioned by planned autumn tour . Their cause was not helped Vince Hogg, the managing director of the ZCU, who when it was learned that Mihir Bose, the sports news 11 was then overruled by the ZCU Board . correspondent of The Daily Telegraph, had been Not unnaturally, the ICC became increasingly deported from Zimbabwe as he arrived in Harare to 20 concerned at the turn of events in Zimbabwe, and cover the Sri Lanka international . The ECWB, for its urged its players and cricketing authorities to resolve part, had in the meantime postponed a crucial vote on 12 the dispute . Several days later, 13 leading white the question whether the Zimbabwe tour should go 21 cricketers released an open statement criticising the ahead . It was also revealed that the Board would not political interference which they claim was eroding the make a final decision until it had met Foreign Secretary game in Zimbabwe. The players stated that: Jack Straw and the Culture, Media and Sport secretary

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22 Tessa Jowell . The Foreign office, however, made it was going nowhere, and that an issue had to be forced 29 clear that it would not deviate from its original course, one way or another . Several days later, the ZCU which was to condemn the tour without actually formally dismissed the 15 rebels, claiming that the latter ordering it to be cancelled. The EWCB’s position had violated a 21-day breach clause in their contracts by became even more confused when it was learned that carrying out their threat and failing to return to work by des Wilson, who had been employed by the EWCB in 7 May. This decision was announced as players in the order to develop an ethical stance over the tour, had rebel group were meeting their lawyers in order to draft resigned because of profound differences with the rest their agreement to the Board’s offer of mediation to 23 30 of the Board as to the strategy to be adopted . resolve the dispute . This meant that the older players Towards the end of April, the ZCU claimed that it had amongst them, such as Grant Flower and Heath Streak, agreed a mediation procedure with the 15 rebels – only had almost certainly played their last international to have this disputed by a player hours later. The ZCU fixture, whereas the remainder were likely to be kept in had issued a statement whereby the players had been the wilderness until a new regime was appointed to 31 issued with a proposal that they should make manage the game in Zimbabwe . themselves immediately available for selection, and that The crisis deepened when the ICC, which was if this were done, a mediation procedure would be becoming increasingly alarmed at this turn of events, instituted in order to ventilate the players’ outstanding intervened and Malcolm Speed, the ICC Chief grievances before an independent mediator. However, Executive, gave the ZCU 24 hours in which to resolve an unnamed player later denied that the mediation the long-running dispute with the players. Mr. Speed 24 process had been confirmed . Nevertheless, Heath indicated that he could not rule out the possibility of Streak was prepared to consider these proposals, and postponing the country’s test series against Australia, he announced that Much Musunda, a respected and scheduled to start later that month. Mr. Speed had prominent businessman, had been agreed as mediator attempted to assist with the process of ending the between him and the ZCU, and that his name would be standoff between players and selectors, but a proposed to the other players as an acceptable neutral scheduled meeting between him and the ZCU had 25 person . failed to take place. He had been invited to address the The next day, it was announced that Mr. Streak and ZCU Board, but headed back for London after the ZCU his fellow-rebels had agreed to resume active duties appeared to change its mind and refused to allow him with the ZCU, whilst emphasising that this was by no into a meeting. The ICC stressed, however, that Mr. means to be interpreted as a sign that the dispute with Speed had not been acting as mediator between the 32 their employers was at an end. They also stressed that two sides . The ZCU then virtually begged the rebel they remained united in their determination to have players to make themselves available for the Australia 26 33 their conditions met . This move meant that they were test, but the latter refused . no longer in breach of contract and thus removed one Meanwhile, the future of Zimbabwean participation 27 of the major planks of the ZCU’s case against them . in top cricket was cast further into doubt when it was Any hopes that this heralded a reconciliation between learned that Australian leg spinner Stuart MacGill had players and authorities were quickly dashed the next decided to pull out of the proposed tour of the country day, when the rebels announced that they would not be by Australia on moral grounds. He informed a leading reporting for practice or making themselves available for newspaper that he would not be able to maintain a the first test against Sri Lanka, scheduled to commence clear conscience playing in a country under the regime the following day. Following a protracted meeting with of President Mugabe. It also emerged that several other their lawyers, the players rejected the ZCU mediation Australian players were entertaining severe doubts as to 34 offer on the grounds that only legally binding whether they should participate in the tour . The “arbitration” of their fundamental grievances would Australian Prime Minister, John Howard, congratulated work in the long term. The ZCU responded by a Mr. MacGill on his “strength of character” (conveniently statement in which they indicated they were still omitting his own deficiencies in this department, given prepared to accept Much Musunda as mediator, but that he had failed to give a clear lead on the question 35 reprimanded players who had made public statements whether the tour should go ahead ). Later, a former in contravention of their contracts, as well as denying Cabinet minister of Mr. Howard’s Liberal party, Bronwyn 28 any racial bias in their selection procedures . Bishop, aired the view that the Australian Government The rebels then informed the Union that, if they should consider paying the fine which would be were not granted the legally binding arbitration they imposed for cancelling the tour in order to enable the sought by the next day, they would tear up their Australian cricket tem to withdraw. She stated that she contracts. They indicated their opinion that the dispute had serious misgivings about the tour, and that she

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36 backed Stuart MacGill’s decision . It was also learned position. It then emerged that a deal had been struck in that Archbishop Desmond Tutu, the South African Dubai between Zimbabwe cricket officials and the ICC. prelate, was urging England’s cricketers not to tour Under this arrangement, the tour would still go ahead, Zimbabwe because of the human rights abuses under but the test matches would be abandoned, leaving only 37 the Mugabe regime . the one-day internationals to be honoured. The Test Domestically, opposition to visiting tours was also on series against Pakistan was also to be scrapped. the increase. In mid-May, Morgan Tsvangerai, the However, Zimbabwe would not be stripped of its test Leader of the Opposition in the Zimbabwean status, and the series scheduled for January 2005 43 Parliament, called on the EWCB to abandon the autumn against Bangla Desh was still set to go ahead . The visit. Mr. Tsvangerai, a member of the Movement for Dubai meeting also addressed the issue of racism, and Democratic Change (MDC), also called on the ICC representative insisted that the ZCU should Commonwealth countries to collaborate in order to submit itself to an independent investigation which 38 boycott the ZCU . Heath Streak himself, who not so would consider the various accusations of racism made 44 long ago was urging England to persist with their tour, by the 15 white rebel players . now urged the latter to cancel it in view of the many It was later confirmed by David Morgan, the grievances which the players had against the ZCU, as Chairman of the EWCB, that England would play five 39 outlined earlier . The players’ international trade union, one-day internationals in Zimbabwe during the winter of the Federation of International Cricketers’ Associations 2004. This seemed to have drawn a line under the (FICA), added their voice to the calls for the players of EWCB’s prevarications on this matter. The ICC, for its both teams to boycott the forthcoming one-day series part, remained adamant that Zimbabwe should retain its against Australia, in a joint show of force aimed at one-day international status as a “pathway” for the saving the careers of the 15 dismissed players. These players towards the Test series against Bangla Desh. dismissals had goaded the FICA into open rebellion However, the ICC President indicated that the ICC against the ZCU board. It hoped that the boycott might remained highly critical of the manner in which the ZCU prompt the resignation of the current ZCU Board had handled the players’ dispute. He issued the ZCU members so that they could be replaced by a more with a 14-day deadline to reach agreement with the moderate body, which appeared to be a wildly rebel players. If that deadline were passed, the ICC 40 optimistic objective . would appoint a dispute resolution committee (DRC) in 45 The prospect of Zimbabwe having its Test and one- order to examine all the evidence in this matter . The day status removed intensified when the attitudes of ZCU agreed to take part in arbitration on the issue, but the influential Australian cricket board appeared to denied that this had anything to do with the deadline 46 harden. Cricket Australia’s Chief Executive, James set by the ICC . Sutherland, indicated that sending Zimbabwe into Test There the matter rested at the time of going to press. exile was to feature on the agenda of the ICC annual This column pledges itself, as always, to continue to general meeting in June. Earlier, the ZCU had monitor this issue with the keenest of interest. capitulated to pressure from the ICC by postponing the two-Test series against Australia, which had avoided an Sport and the “war on terrorism” immediate ICC vote on a motion stripping Zimbabwe of its Test status. It was anticipated that Zimbabwe’s Test General status would not survive another vote if the dispute Since the 11 September attacks, the US and other 41 with its players was not settled before mid-summer . countries have embarked on the “war on terrorism”, The future of Zimbabwean cricket was also narrowly which has since involved the invasion of Afghanistan linked to the continuing controversy surrounding the and Iraq. Naturally, sporting considerations have not planned England tour in the autumn of 2004. It had been prominent in the events surrounding this war. already been indicated that a definite decision to cancel However, sport is an inescapable social phenomenon the tour by the British Government would be the which refuses to die down even in the most trying of decisive move on this issue, but thus far the Blair circumstances, as the countries in question have shown government had restricted itself to expressing its in the meantime. opposition without actually ordering its cancellation. In One unfortunate way in which sport has been late May, the ICC called on the British Government to dragged into this matter, however, occurred at the start 42 take a clear-cut decision on the matter . This was in part of the Olympic Games, held in Athens over the summer to spare the EWCB the crippling financial consequences of 2004, when the administration of US President which would flow from cancellation, as outlined above. George Bush chose, as part of its campaign for the However, the British Government failed to change its forthcoming presidential elections, to release an

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50 advertisement aimed at fitness fanatics. The feature Saddam’s sons Uday and Qusay never lost their races . attempted to link the war in Iraq with the Olympic However, it was – as could have been predicted – Games, and attempts to build an improbable bridge the sport of football which gave sport in Iraq its greatest between the events in Athens and what it described as fillip over the summer months. Here again, we are “positive news and developments out of Iraq and dealing with a sport which Saddam regime had done a Afghanistan”. Quite what these “positive good deal to lay to waste, with the national team being developments” amounted to was not explained by the regularly subjected to abuse and torture from the 47 51 advertisement . regime for losing matches . The team had, however, Quite apart from the questionable timing and content succeeded in the face of adversity to qualify for the final of this feature, there were a number of legal issues stages of the Olympics. When the team warmed up for involved. Under US federal law, the insignia, images and their Olympic campaign by means of a 10-day British trademarks of the Olympic Games may only be used for tour, there was little to suggest that they were anything marketing purposes by the International Olympic other than a modest international side, even though Committee and the national Olympic committees. In the they performed creditably against some semi- 52 US, this means that the Olympics belong to the US professional sides – which did not include the British Olympic Committee. In fact, this was pointed out by the Parliamentary team, whom they crushed 11-0 without 53 latter’s officials when they were asked to comment on breaking sweat . the advertisement. Its lawyers were reviewing the tape However, as the Olympic football tournament 48 of the advertisement . progressed, it was clear that the Iraqi side were to be no pushovers. This was already apparent from an Iraq emphatic 4-2 win against Portugal during the preliminary 54 The sporting performers of Iraq were a beleaguered stages of the tournament . This enabled the team to species even before the invasion of March 2003, since qualify for the quarter-finals, where they met and beat they frequently suffered mental and physical abuse at Australia 1-0, which caused unprecedented celebrations 55 the hands of dictator Saddam Hussain and his equally across the nation . It is interesting to note that several unsqueamish relatives and henchmen. The invasion and members of this team had branded President Bush a its aftermath have obviously done little to encourage “criminal”, and called for the withdrawal of US troops even those young men and women with an aptitude for from Iraq, after Mr. Bush’s team used the sport to make improvement in their performance a advertisement referred to above, in which the Olympic 56 priority which superseded mere survival. However, there spirit was linked to the Iraq invasion . are hopeful signs that the Iraqi sport has shown itself to be sufficiently resilient to overcome such handicaps. Afghanistan One of the sporting activities in Iraq to have suffered Although the representatives of the other country to be the dubious attentions of the Saddam clan was invaded by the US were less spectacular, they too wrestling. As part of their preparations for the performed as creditably as could be expected. There Olympics, the national wrestling team were allowed a was an added significance to the appearance of a period of training in the US Olympic training particular athlete, judoka Friba Razayee. Although she headquarters of Colorado Springs. This followed the lost in 42 seconds to Spain’s Cecilia Blanco, she was reinstatement of Iraq’s National Olympic Committee by the first Afghan woman to take part in an Olympic the IOC in February 2004, along with a pledge given by event. In fact, Ms. Razayee was one of three Afghan the US to assist and fund their athletes. This was a far women to perform in Athens, the other two being cry from the days when Odai Hussain, Saddam’s son, sprinter Robina Muqimyar and Neema Suratger, a was in control of sport. When Iraq’s sporting member of the country’s Olympic association who 57 representatives travelled abroad to compete, they were carried the Afghan flag during the opening ceremony . required to sign a paper stating that they would finish A less happy sporting note was struck in this country among the top three. Those who failed to live up to this when it was learned that an American Football star, commitment were either fined or jailed. Athletes were who had been hailed as a hero for abandoning a 49 also frequently interrogated and tortured . lucrative career in sport and joining the army after the In mid-July, Iraqi sport received another boost when 11 September attacks, had been killed in action. Pat it was announced that racing was to be reinstated. This Tillmann, 27, died as a result of an ambush on his 58 too had been a sport which had suffered interference Rangers patrol in the south-east of the country . by the Saddam regime. The sport was funded by the Corporal Tillman received a posthumous Silver Star for 59 authorities, but at the price of massive corruption, combat bravery . which ensured that the Arabian ponies owned by

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63 India and Pakistan resume cricketing relations violent conflict ever closer . 60 The previous issue has already related some of the The tournament itself passed off peacefully. One of difficulties encountered in attempting to revive the factors responsible may have been the fact that the international cricketing competition between India and head of the International Chess federation (FIDE), Kirsan Pakistan, who for political reasons had become Ilyumzhinov, had travelled to Georgia to mediate in the estranged from each other in many respects, including conflict. Mr. Ilyumzhinov also happened to be the sporting relations. A Test and one-day series between president of the tiny Russian republic of Kalmykia, a 64 the two nations was planned for March 2004, but many Buddhist enclave on the Caspian sea . hurdles and objections had to be cleared before the series could finally go ahead. Football attempts to heal wounds When it finally did, the performers rose magnificently in Hutu/Tutsi conflict to the occasion, and the first one-day international in Undoubtedly, one of the most horrific war crimes during Karachi yielded the closest possible result, with India the second half of the previous century was committed 61 emerging victorious by a mere five runs . Even more during the Rwandan civil war of the mid-1990s, when importantly, fears that the tensions on the pitch would no fewer than a million people died in the course of a spill over into the crowd and cause trouble proved to be 100-day period in which the Hutus, incited to a 62 unfounded . The remainder of the series was also played murderous frenzy by their government, set about the in the same spirit of competitive but civilised cricket. extermination of their Tutsi neighbours. In a remarkable attempt of reconciliation, in April Trouble flares at China v. Japan fixture 2004 there took place a football match between a team This issue is dealt with under the heading of 11 confessed Hutu killers and a team of 11 Tutsi “Hooliganism”; see below, p.56. survivors. This was the brainchild of Aloisea Inyumba, the female governor of the Kigali province where the Chess: the new peacekeeping sport? massacres took place, and who had previously chaired In spite of the impact made by superstars such as the National Reconciliation Commission. The fact that Bobby Fischer and Garry Kasparov, chess has never football is an extremely popular sport in Rwanda, which been the most newsworthy of sports. In recent cuts across all tribal denominations and operates at all months, however, this sport seems to have reinvented levels, was undoubtedly a prominent consideration 65 itself as a peacekeeping force in the world’s affairs. In when this event was organised . early May, many of the top female chess players flew into the middle of a bitter conflict, hoping that their Olympic torch rouses old enmities in Cyprus calm, measured thought could ease international Cyprus is yet another country riven by deep-seated tensions. The occasion was the World Women’s Chess conflict, which even its recent accession to the Championship, held in Batumi, the port capital of European Union seems incapable of quelling. As part of Adjaria, being a breakaway region in the former Soviet the run-up to the Olympic Games, it was thought by the republic of Georgia. Violent conflict had been brewing in organisers that the passing of the Olympic Torch the region for some months previously because of a through the island could possibly be experienced as a tense stand-off between the new Georgian symbol of reconciliation between the Greek and Turkish government, headed by President Mikhail Saakashvili, communities, who have lived a separate existence ever and the head of Adjaria, Aslan Abashidze. The latter, since a boundary was drawn between them in 1974. who maintains an authoritarian grip on the region with However, these plans fell apart at the eleventh hour on his brutal suppression of political opponents, had account of a disagreement over welcoming ceremonies. refused to recognise the presidency of Mr. Saakashvili. As a result, the sacred Flame was hosted only by the 66 Matters had reached such a pitch that the Georgian Greek Cypriot administration . Minister for Sport indicated that the Championship This provoked a furious response from the Turkish should not be held in Batumi because of the presence Cypriot sports minister, Ozkan Yorgancioglu, who blamed of illegally armed groups in the region, so that the this episode on the “racist and fascist Greek Cypriot authorities could not guarantee the safety of the administration”. This was refuted by Kikis Lazarides, the participants. Tensions had also risen because the head of the Cyprus Olympic Committee, who claimed Adjarian authorities had ordered a “general that the Greek Cypriots had been extremely keen on mobilisation” of the population, many of whom kept having the torch pass across the island’s demarcation weapons at home, to defend the region. The Georgian line. The sole condition for this was that the Turkish authorities in Tbilisi had also mobilised the armed forces Cypriot authorities should waive passport requirements close to the Adjaria border, bringing the prospect of for the runners and their entourage at the main crossing

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point in Nocosia. Mr. Lazarides claimed that this in that they preserved fair competition in the sporting condition had been agreed to. sense. The matter was then referred to the European The Turkish Cypriot Prime Minister, Mehmet Ali Talat, Commission, which arrived at the same conclusion. for his part, stated that the original plan had stumbled He also points out that part of the Court’s work over the question whether the Turkish Cypriot North of consists in delivering advisory opinions, which are not the country would be allowed to hold a welcoming legally binding but very useful for clarifying points of ceremony which matched that which was planned for sports law, and thus avoiding court disputes. All this the South. This apparently resulted in lengthy allows him to conclude that the Court was operating as 69 discussions as to whether this violated the principle of an effective force in sports law . equality between the two communities, the outcome of which was extremely negative. The Greek authorities in Survey of sporting case law in German 70 Athens felt that the Turkish Cypriots were attempting to journal take political advantage of the event by holding an Writing in a leading German law journal, the author official torch-lighting ceremony of the kind held in presents a comprehensive and systematically presented internationally recognised countries. Greece is and was survey of the various decisions with sporting opposed to anything which implies direct or even implications which have been issued by the German indirect recognition of the self-proclaimed republic of judiciary during the 2002-3 period. This overview is Northern Cyprus. As a result, the torch-bearing divided into four headings: (a) the law relating to clubs formalities were confined to the Greek Cypriot part of and federations, (b) competition and contract law, (c) 67 the country . employment law and (d) tort liability and insurance.

Other issues

Sporting court “is getting the right results” claims CAS member June 2004 witnessed a landmark in sports law which has perhaps passed somewhat unnoticed, to wit the 20th anniversary of the founding of the Court of Arbitration for Sport (CAS), established as a supreme forum for the settlement of legal disputes arising from sporting activity. This was the brainchild of Juan Antonio Samaranch, who at the time was President of the International Olympic Committee (IOC). Since those days, the CAS has become respected, equitable and effective forum for the speedy and inexpensive settlement of sporting disputes. One of its prominent members, Ian Blackshaw, who has also contributed regularly to this Journal, took advantage of this anniversary to assess the CAS’s progress in a leading 68 daily newspaper . Mr. Blackshaw focuses on the sound reputation earned by the Court across a broad spectrum the subject areas. Apart from purely sporting matters, such as eligibility criteria and drugs issues, for which it acts as the final court of appeal for the international sporting federations, the CAS has also acquired a reputation for adjudicating in sports-related business disputes. He identifies as a good example of the growing influence by the CAS in this field the time when it was called upon to settle a dispute concerning UEFA restrictions on multi- ownership of football clubs taking part in the European competitions. In that case, the Court ruled that these restrictions did not distort competition, and were justified

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Corruption in sport had apparently invited the said undercover reporters to his office in Kuwait, and informed them that if they “Olympics still open to bribes”? BBC claims were “extremely careful” he would help them bypass 77 cause storm the IOC’s code of ethics . It thus seemed that he had Those who maintain that “Olympic corruption” is a been unmasked as a key operator in the clandestine tautology have hitherto been able to quote a good deal of world of crooked IOC members, and that he had evidence in support of their claim. Examples of unlawful survived earlier scandals. Thus it emerged that, in 1999, venality on the part of those involved in administering the he acted as middleman in the infamous “cash for Games have been too numerous to document here. votes” scandal which resulted in the Winter Games for However, the various clampdowns and initiatives set in 2002 being allocated to Salt Lake City. He had charged motion in order to banish this unfortunate side of the a fee of £34,000 in order to organise the bribes. Olympic ideal appeared to have succeeded in heralding a Offering to provide a similar service for the BBC new age in which corruption was to be eliminated slowly reporters, he is believed to have revealed that he knew but surely. However, recent events have cast some IOC members prepared to swing the vote in London’s doubts on the effectiveness of this strategy. favour. He explained that corrupt members were With barely a few weeks to go before the start of the extremely cautious about whom they dealt with, but he Athens Games, the International Olympic Committee insisted that many of them remained keen to trade their (IOC) were forced to launch an investigation into claims vote for cash and other inducements. He urged the that a European IOC member was found to be willing to reporters to attend a meeting of the Olympic Council of accept a bribe for assisting London’s chances of Asia in Qatar, and mingle with IOC members, but advised acquiring the 2012 Olympics from undercover reporters them not to offer direct bribes. He claimed to know how 71 posing as London-based businessmen . The IOC best to advise on the manner in which to approach corrupt President, Jacques Rogge, referred the allegations, IOC members, because some were keen on receiving made during a broadcast of the BBC’s flagship cash, whereas others preferred benefits and incentives in programme Panorama, to the IOC’s Ethics Commission other forms. If Mr. Ahmad was to be believed, the ten after they were brought to his attention. members who left the IOC as a result of their involvement It soon emerged that the IOC member who allegedly in the Salt Lake City scandal represented only one third 78 agreed to the arrangement was Ivan Slavkov, a Bulgarian of the members prepared to trade their vote for bribes . representative who had been President of his national Another shady figure who was featured in the Olympic Committee since 1982 and Chairman of the Panorama programme in question was Serbian Bulgarian Football Association since 1995. The undercover businessman Goran Takac, who also claimed that almost reporters in question had offered to “look after him” in a quarter of the 124 IOC members were to varying 79 return for his vote in favour of the British capital’s degrees open to bribery in return for their vote . It was, 2 candidacy7 . The BBC immediately proceeded to impose predictably enough, not long before this affair became a news blackout on this story, and both the British caught up in IOC politicking. Thus Craig Reedie, the sporting officials and Culture Secretary Tessa Jowell Chairman of the British Olympic Association (BOA) and a expressed their confidence in the integrity of the London director of London’s bid to host the Games in 2012, 73 bid . However, a BBC spokesman claimed that the concluded a pact with IOC President Jacques Rogge programme had included details of those agents who can which meant that neither would raise the matter at the deliver votes for cities seeking to stage the world’s largest opening of the IOC’s two-day meeting in Athens on the sporting event. Their identities were not immediately eve of the Games. The intention was to attempt to take available, but one of the five short-listed cities, New York, the heat out of the issue. However, Juan Antonio 74 was believed to have been contacted by these agents . Samaranch Jnr, son of the IOC’s former President, saw an In the meantime, the IOC had proceeded to suspend Mr. opportunity to make political capital for one of London’s Slavkov whilst its investigations were pending. The rivals in the bidding process, i.e. Madrid. He therefore Bulgarian official, for his part, announced his intention to requested that a video of the relevant Panorama 80 challenge this suspension before the Court of Arbitration programme be made available to every IOC member . 75 for Sport (CAS) . He also indicated he was prepared to This move forced Mr. Reedie into an immediate 76 sue the journalists involved . damage limitation operation, and he accordingly No sooner had the Olympic movement taken in this informed the other IOC members that he had made news, when further revelations appeared on the private protests against the programme in an effort to 81 horizon. August was barely two days old when it was distance the London bid from the allegations . alleged that another IOC member, Abdul Muttaleb There the matter seemed to rest, and it was hoped Ahmad, had been implicated in the scandal. Mr. Ahmad that it would only resurface in the shape of the

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outcome of the IOC investigation. Although the matter Cricket corruption scandal – an update did not re-emerge in the course of the Athens Games, It would seem that, since this column started to report there was further bad news in late August, when it was on developments in this matter, the various measures reported that London’s 2012 Olympics bid was to be taken by the international cricketing authorities have had the subject of further investigations by the IOC in the a major impact on the corrupt practices which were wake of the continuing fall-out from the Panorama bedevilling the game and gave rise to, inter alia, the 82 affair . It emerged that the IOC Ethics Commission, Hansie Cronje scandal – extensively documented in which was formed in the aftermath of the Salt Lake City previous issues of this Journal. Nevertheless, the affair, had written to all five cities short-listed for the problem has not disappeared entirely, as can be seen 2012 bid, requesting further information about the from the developments outlined below. meetings and events which their bid teams had In mid-August 2004, the former Kenyan captain attended world-wide during the previous year, and Maurice Odumbe was banned from cricket for five whom they had met in the process. This followed other years after having been found to have inappropriate revelations made in the Panorama programme, which contact with a bookmaker. The Kenya Cricket had featured a letter sent by Keith Mills, the Chief association (KCA) imposed the ban after a Zimbabwean Executive of the London bid, to Vitaly Smirnov, Russia’s judge, who presided over a four-day hearing organised IOC Vice-President. Mr. Mills was travelling to Moscow by the sport’s world governing body, the International on private business unconnected with the bid, but had Cricket Council (ICC), had made the recommendation a 87 enquired about the possibility of meeting up with the few days earlier. The ban took effect immediately . IOC powerbroker over coffee. Although Mr. Mills did Earlier, it had been learned that the former India not eventually go to Moscow, the programme alleged captain, Mohammad Azharuddin, who had been banned that this represented an unlawful approach to an IOC for life for involvement in match fixing, was left out of a 83 Committee member . pension scheme organised for the benefit of the No further details of this development were available country’s Test players. The plan, under which 174 Test at the time of writing. players and umpires will receive 5,000 rupees per month, was announced as part of the 75th anniversary 88 Olympic chief goes to prison celebrations of the Board of Control for Cricket in India . Even before the news of the Panorama programme referred to above had broken, the world was given an Indictment on American football vice claims unwelcome reminder of the potential for corruption In late August 2004, it was learned that a Colorado (US) presented by the Olympic Games with the news that a Grand Jury issued an indictment following allegations Vice President of the International Olympic Committee that prostitutes had been used in order to recruit had been jailed. American football players to a University team. The 84 Previous issues of this Journal have charted the University of Colorado in Denver had been under course of the unsavoury career of Kim Un Yong, who investigation since February of that year, when the 89 acted as the South Korean sports czar and steered his allegations had first been made . country’s successful hosting of the Games in 1988. He In this sport, it is not unusual for teams to offer had been found guilty of embezzling £1.5 million which prospective players an inducement to join them; had originally been donated to the sporting organisations however, employing prostitutes for this purpose was operated by him. Prosecutors claimed that he used the deemed to be a step too far. The indictment, which is cash in order to help finance his candidature for the an indication that formal criminal charges are likely, was elections to the IOC Presidency in 2001. In addition, he issued by a grand jury charged with investigating the accepted an illegal payment from a South Korean sports scandal after a district attorney had alleged that sex and official in order to “provide amenities” for IOC members alcohol were used to lure recruits. The allegations are visiting Seoul. He also diverted cash from a sporting centred on charges made by former escort manager organisation to finance his legal fees and to provide his Pasha Cowan that she was contracted by a University son, John Kim, with assistance in fighting charges, also sports department official in late 2002 for the purpose 85 related to Olympic impropriety . of providing prostitutes for the recruits. The Mr. Kim Sr had received a severe warning in 1999 after investigation came in the wake of seven allegations the IOC corruption scandal surrounding the bidding for the relating to the team since 1997. Earlier this year, a 2002 Winter Olympics. The court sentenced Mr. Kim to former woman player with the team had come forward 90 20 years imprisonment, and stated that he had escaped a to allege incidents of sexual harassment . longer sentence because of his age, high blood pressure 86 and contribution towards South Korean sport .

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Mafia police investigate betting scandal Portuguese authorities make arrests over match- Sport is only one of the areas in which Italy can boast fixing allegations many fine traditions. However, one of the less In late April 2004, Portuguese football incurred a blow admirable traditions of Italian life has for some time to its reputation during the build-up to Euro 2004 when been the way in which organised crime has gained a police detained the League president, Valentim foothold in virtually every aspect of society. In mid-May Loureiro, as well as four members of the referees’ 2004, the news broke that the sport of football may panel for questioning over allegations of match-fixing. In have been yet another area in which this nefarious all, police arrested 16 people and searched the influence had made itself felt, when it was learned that headquarters of Portugal’s football league as part of a anti-mafia police were preparing to investigate alleged year-long anti-corruption operation code-named Golden links between Italian clubs and organised crime. More Whistle. The police also raided the Lisbon headquarters particularly, police were looking into allegations that of the Portuguese Football Federation and removed twelve Italian football clubs had been involved with documents from the offices of First Division side 95 suspected match fixing. The investigations centred on Sporting Braga . four Premier Division (Serie A) clubs, i.e. Chievo, Lecce, The police later explained that the object of the Siena and Reggina, along with two in the Second inquiry was to establish the existence of “illicit 91 Division and six from the Third Division . behaviour which could alter the truth in sporting The investigation was led by a Naples-based anti- competitions and their results”. The outcome of the mafia unit, and was initiated following interception of case was not known at the time of writing. several telephone conversations involving five players. The public prosecutor’s department alleged that: “agreements for fixing matches (...) led to illegal Hooliganism and related issues ways of gaining money. The investigations want also to prove the involvement of organised crime Violence mars Euro 2004 tournament and mafia in these procedures” Seldom can a football tournament – or indeed any sporting event – have been preceded by such massive The main evidence was an alleged telephone precautions and preparations aimed at preventing crowd conversation between former Siena goalkeeper trouble than the Euro 2004 football competition, held in Generoso Rossi and a former team-mate of his, Roberto Portugal during the early summer of 2004. Many of these d’Aversa. When asked by the latter what the results of measures have already been reported in earlier editions 96 the forthcoming Sunday’s fixtures were going to be, the of this Journal . As a result, it is fair to state that the goalkeeper was said to have answered that Chievo and tournament passed off in as trouble-free manner as could Ascoli would draw, whereas Crotone and Catanzaro be expected, given the involvement in the competition of would win. This prediction was later borne out by the countries whose supporters had in the past given rise to results obtained. There were other conversations of this a good deal of mayhem. In spite of this, there were a nature, including one in which Rossi talked about the number of unsavoury incidents which detracted from possibility of earning £20-25,000 on a fixture between what was otherwise an extremely enjoyable competition. Siena and Udinese. Questioned by judges on this One of the countries with an unfortunate reputation 92 matter, Rossi refused to comment . for hooliganism referred to above, is inevitably England. Later, it also emerged that match officials had also The British authorities appear to have done their level come under suspicion, and in mid-July two Premier best to ensure that the good name of this most Division (Serie A) referees were suspended after being traditional of footballing nations was not sullied yet again drawn into the affair. Marco Gabriele and Luca Palanca, by acts of mindless yobbery. Thus the courts made full who had officiated at 46 Serie A fixtures between them, use of the powers conferred upon them by football were among the group of 14 people named by Naples disorder legislation, and banned a total of 2,188 people 93 police . from attending any domestic or international football A tribunal was then set up in order to investigate the fixtures by ordering them to surrender their passports to matter. No further details were available at the time of the police. Another 500 people had a similar ban writing, other than the procedural point that the tribunal imposed as part of court bail conditions. This compared declared itself unable to penalise clubs, players and with only 100 people who had been prevented from 94 97 officials outside the top two divisions . This column will travelling to the Euro 2000 tournament in Belgium . naturally continue to monitor developments in this The Portuguese authorities had, in addition to the regard with the keenest of interest. elaborate security measures reported in earlier editions of this Journal, also taken the precaution of restoring

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the border controls which they had eliminated in 1991 after allegedly hitting and swearing at a police officer in 104 under the EU Schengen Agreement, which allows total a bar in Figueira da Foz, 90 miles north of Lisbon . freedom of movement between some EU member states. This meant that passports would be checked Football violence gives rise to three-day and vehicles searched at the frontier with Spain. In riot in Syria addition, British police advisors were to be posted in the Syria is not a country which has hitherto been noted for North and South of Spain in an attempt to spot excesses of football hooliganism. However, a fight 98 hooligans trying to gain access to Portugal . which occurred between Arab and Kurdish supporters This array of measures did not prevent trouble from of rival Syrian football clubs ultimately led to three days breaking out on certain days. More than 200 England of rioting in the North-east of the country, which left at fans ran amok in the Algarve resort of Albufeira during least 15 people dead and over 100 injured. The violence the early hours of 15 June, hurling bricks, bottles and commenced when fighting broke out between chairs at police, one of whom required stitches to a supporters of the al-Jihad and al-Fatwa football teams head wound, and ten fans were treated in hospital for shortly before a fixture taking place in Qamishli, 450 minor injuries. Ironically, the trouble came only 24 hours miles north of the capital Damascus. At least nine after the police had praised England’s fans for their people died during the violence and stampede which behaviour following their dramatic last-minute defeat by ensued. The next day, hundreds of Kurds took to the 99 France during the opening fixture of the tournament . streets of Qamishli in spontaneous demonstrations As a result, ten England fans were deported to their which rapidly degenerated into further rioting, as well as 105 home country in disgrace. Seven of these had received the looting of shops and state offices . suspended sentences and will undoubtedly be hearing from the British authorities under the aforementioned Old hatreds are rekindled at China v. Japan football disorder legislation. Three others were football fixture acquitted on condition that they agreed to leave the It is an unfortunate fact that age-old rivalries and hatred 100 country and not to return with a year . between regions and nations are increasingly being However, matters assumed an infinitely more played out in and around football grounds – not only on dramatic turn the following week, when the news broke the field of play, but also amongst the spectators and that an England fan, mechanic Stephen Smith, had been others taking an interest in the result. The most recent stabbed to death as he celebrated England’s win over example of this took place in Beijing, China, following Croatia in one of the Group matches. He had incurred a the final of the Asia Cup in which the home squad single stab wound to the heart as he sat with friends played archrivals Japan. After the match, which Japan outside a bar in Lisbon at 4.00am. The group had been won 1-3, hundreds of Chinese supporters clashed with repeatedly approached by a man begging for money for riot police outside the stadium. Supporters threw about two hours. When he attempted to steal Mr. bottles, shouted obscenities, burned Japanese flags and Smith’s wallet, the victim pushed him away, whereupon surrounded the Japanese team bus, which was pelted 101 106 the stabbing took place . with missiles and compelled to return to the stadium . The next day, another stabbing of an England fan Trouble had already been brewing during the match took place. It appeared that the 19-year-old victim had itself, during which fans booed Japan so loudly as to been involved in a fight before the stabbing took drown out the Japanese national anthem at the start of 102 place . Although initially in a serious condition, he the fixture. Both governments had pleaded with fans to survived the experience. remain calm ahead of the game, and 6,000 riot police, There were other isolated incidents. Thus during the troops and security staff had been deployed to prevent weekend which followed the Portugal v. Greece final, trouble. At earlier stages of the tournament, the teams police had to be called in order to control angry Greek fans had also met in Chongqing, when the Japanese team bus at the Sheraton Hotel in central Lisbon as hundreds of was also held up by an angry mob baying for Japanese supporters gathered outside, hurling abuse at the leaders blood. These incidents have been a major embarrassment of the Greek football federation. Their annoyance had been for the Chinese government, and have given rise to some caused by the fact that their travel packages did not include doubts as to whether the country should be entrusted 103 107 seats for the final itself, even after several hours’ queuing . with the organisation of the 2008 Olympics . Earlier in the course of the tournament, six Germans had been detained in Oporto for allegedly throwing Rome derby riot and its aftermath bottles and glasses at passers-by. The men were The rivalry between the two main football sides of the released after police took their details at the local Italian capital, to wit Lazio and AS Roma, has been known station. On the same day, four Swiss men were held to end in violence in the past, and this was once again the

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unfortunate outcome of the Rome derby held in March ribs after several players from the Rotterdam side were 2004. On this occasion, the rioting was so serious that assaulted by hooligans claiming to support Ajax. the match had to be abandoned, following rumours that According to Feyenoord’s official website, a large the police had killed a boy outside the stadium. contingent of Ajax “fans” spilled onto the pitch after an Before the match, the police and the “ultras”, i.e. unremarkable reserves match and attacked Chilean 112 the extremist hard-core fans of both teams, had been international Acuna as well as Robin van Persie . involved in ugly confrontations outside the stadium. The previous Sunday, Rotterdam police made 53 Supporters, some of whom attempted to gain access to arrests during a Premier league (Eredivisie) fixture 113 the stadium without tickets, had repeatedly been between the two clubs . dispersed with tear gas. At half time, a rumour began to This incident led to renewed calls amongst politicians circulate around the stadium that in the course of the in the Netherlands for the introduction of legislation disturbances a child had been run over by a police car modelled on the English Football Disorder Act 2000. In a 114 and killed. The rumour was without foundation, and was brief comment in a leading Dutch journal , the authors repeatedly denied over the ground’s sound system. Zijlstra and Brouwer dismiss such calls as mere knee- However, a number of people continued to attach some jerk reactions, and maintain that the existing Netherlands credence to the story and kept some parts of the legislation on the subject is perfectly adequate. In fact, 108 ground simmering with anger . they compare it favourably to the English legislation as With only four minutes gone during the second half, being more flexible Thus they point to the system of the match was officially stopped, with the score “voluntary reporting” to the authorities on match days, standing at 0-0. Fans hurled burning flares onto the pitch of which convicted hooligans may avail themselves, with from the banks of seats favoured by the ultras, and the incentive that they will thus commute part of any other spectators were displaying signs of panic as gas banning order to a conditional banning order. wafted into the stadium. After 15 minutes of total chaos, the referee and players marched off the pitch and the Status report on amendments to Belgian ground was cleared. The man who took the decision to law on hooliganism – Belgian academic 115 abandon the fixture was Adriano Galliani, the President article of the Italian Football League. This gave rise to various In this article, the author Godfried Geudens, Assistant conspiracy theories based on the fact that Mr. Galliani is Lecturer at the University of Antwerp, examines the also the Vice-President of AC Milan, who at the time state of affairs shortly after the introduction of an were 10 points clear of Roma at the top of the Premier important amendment to the Law on Football Division (Seria A) and would therefore stand to gain if Hooliganism (Voetbalwet) of 21/12/1998. This legislation 109 the match were abandoned . However, Mr. Galliani imposed a number of administrative obligations on the insisted that the remaining 42 minutes would be played football clubs, the sport’s national federation and the at a later date. In fact, it was later decided that the entire spectators, which were capable of attracting criminal fixture would be replayed, and the date for this fixture penalties. The Law also created a legal basis for the 110 was subsequently set for 21 April . intervention of football stewards. In all, the clashes between police and fans left 153 Four years after the entry into effect of this police officers and 14 fans with minor injuries. It was legislation, it was amended in some significant the worst incident in the Italian football season, and respects. In addition to a number of adjustments of a took place against the background of the severe mainly technical character, the amendment also difficulties facing several Italian clubs threatened by considerably broadened the scope of the legislation, bankruptcy (see below, p.84) and various accusations of and did so in three important respects: (a) in substantive 111 corruption (see above, p.55) . terms, the number of administrative offences was increased; (b) as regards the relevant time limits, by Feyenoord player taken to hospital after extending the period in which these infringements can attack by fans be committed, and (c) in territorial terms, by extending Another footballing rivalry which measures high on the the area in which the legislation is applicable through Richter scale is that which exists between top Dutch the introduction of the “perimeter” concept. sides Ajax (Amsterdam) and Feyenoord (Rotterdam), The author concludes that the manner in which the and which has also been known to find expression in legislation was amended seems to indicate that the acts of hooliganism. The unattractive side of this rivalry Belgian Parliament was satisfied with the general was once again on display in mid-April, when it was manner in which the 1998 Law operated, since its reported that Feyenoord midfielder Jorge Acuna had to overall effect was to broaden its scope rather than be taken to hospital with injuries to his head, neck and restrict it. This does not mean, however, that the

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amendment has not given rise to a few difficulties. Thus compelled the cancellation of one of the major he opines that there are legal defects in the manner in tournaments in the annual calendar, to wit the three-day which the general obligations of the organisers of Comédie de la Petanque, which attracts 4,000 players matches and of the national federation are defined. and is normally held in July. A spokeswoman for the Mayor blamed an increasing climate of intimidation and Scope of Belgian anti-hooligan legislation – threats which had seeped into the game, and that 116 Belgian Supreme Court decision henceforth the sport would have to take its Under the Belgian anti-hooligan legislation described in championship elsewhere. She added that the the previous section, the courts may, pursuant to Article atmosphere at the tournament had worsened as 41 of the 1998 legislation (Voetbalwet) issue banning supporters of local teams heckled supporters from the orders as a result of a conviction for an offence away teams and disrupted their game. Calling for a committed inside the football stadium. This order can be players’ charter of good behaviour to be formulated by for a duration of three months to ten years, which may the sport’s governing body, she also admitted that be accompanied by the duty to report on match days. excessive drinking of the local speciality pastis was also 118 The Supreme Court in the case under review ruled that a factor which had encouraged this trend . this penalty may be imposed not only in the event of an This move was actually welcomed by Jacques infringement of Article 38 of the Law, but also for any Théron, Vice-President of the Fédération Française de other infringement which has been committed in a Boules – the sport’s governing body. He claimed, footballing context, either under the Penal Code however, that this was an element which was peculiar (Strafwetboek) or under any special criminal legislation. to Montpellier, and that the other major tournament of 119 the year, in Marseille, there was relatively little trouble . Preventative measures against travelling hooligans. Article in leading German journal In this brief overview of the existing preventative “On-field” crime measures which can be taken against travelling hooligans under German legislation, the author Concerns over Athens Olympics security: examines the various headings under which these all’s well that ends (relatively) well measures can be classified: (a) the restrictions related One of the principal concerns of the organisers of this to passport and other identity documents, (b) the duty year’s Olympics has undoubtedly been to guarantee the to report, and (c) preventative detention. Since the safety of competitors and spectators. Unlike the Euro attacks by German hooligans which took place during 2004 tournament, however, the security concerns arose the 1998 football World Cup, and the riots which took less from the need to curtail crowd trouble than that of place on the occasion of top political summits in Genoa ensuring that terrorism should not be allowed to endanger and Gothenburg in 2001, the German authorities have the participants’ lives. Even before the attacks of 11 increasingly opted for passport restrictions and orders September, Olympic sensitivities on this issue have been to report to the authorities on the date of the event. He extremely high, particularly since the terrorist hostage- concludes that in taking these measures, the German taking which occurred during the 1972 Munich Games. authorities have combined observance of their As can be seen elsewhere in this Journal (below, obligations under international law with the need to p.71), the immediate run-up to the Athens Games was respect the fundamental rights to safety on the part of dominated by concern that the hosts would not complete potential victims of hooliganism. all the work required to enable the Olympics to taken place in accordance with the standards expected of such Hooliganism with boules – traditional French an event. As part of these concerns, some observers felt 117 game now afflicted with the problem qualms about the security measures which would be in Boules is a national institution in France as well as a place for the tournament. In fact, by mid-April 2004 an treasured image which many foreigners entertain of the authoritative assessment of the major construction country, with overtones of beret-clad pensioners whiling projects for the Games had shown not only that the away the time in the sun-soaked alleys of Provence in building was lagging behind schedule, but also that the between sips of pastis. It seems that the modern world only way in which the building could be completed would is catching up with this most traditional of sports, be by cutting corners on security and crowd safety. More including some of its less attractive aspects in terms of particularly the delays incurred would mean that there crowd behaviour. was less time to erect security fences, install closed- In mid-May 2004, an official at the City hall in circuit television and train security guards before the 120 Montpellier confirmed that spectator trouble had opening ceremony on 13 August .

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These concerns even prompted the British Nevertheless, matters did seem to be advancing and ambassador to Greece, Sir David Madden, to seek a improving steadfastly on the security front. In fact, so meeting with the Minister in charge of security at the visible was the security in the nation’s capital, that many Olympics, i.e. George Voulgarakis. The latter locals were beginning to voice their concern that subsequently dismissed any concerns and emphasised security measures may have gone too far and begun to the effectiveness of Greek security, and expressed his erode basic civil liberties. It was not only the high-tech dissatisfaction with the media reports which had and expensive anti-terrorist systems which were irking prompted these concerns. He also firmly ruled out the the locals, but also the extensive surveillance, which presence of any armed foreign police on its soil during was city-wide, round-the-clock and pin-sharp in detail. 121 the Games . However, a few days later the Greek Looming somewhat menacingly over the city was the government conceded that it was not prepared for a airship which had been introduced as the final link in the 127 chemical or biological attack on the site, and that the observation network . Another development which authorities were struggling to assemble a contingency aroused a good deal of opposition from some locals was plan for such an attack. The Health Minister, Nikitas the “clean-up” operations which saw the removal from Kaklamanis, implicitly put the blame for this deficiency on the capital’s streets of thousands of immigrants, the previous Socialist government which had been voted beggars, drug addicts and homeless people. Human out of power six months previously. He alleged that the rights activists expressed their fear that vulnerable previous administration had failed to equip Athenian people, including asylum seekers from war-torn hospitals and health centres to deal with the mass countries such as Iraq, were falling victim to this 122 casualties which would result from a terrorist attack . campaign. They went so far as to describe this operation 128 It was almost inevitable that, at some stage during as creating a “climate of terror” on the streets . the preparations, an undercover journalist would test the During all this time, the question whether security arrangements, and one such reporter was contingents of athletes would be allowed to enjoy Daniel Howden of the Independent. He found the front protection from their own troops and guards had started door to the Olympic Stadium wide open whilst the work to cause all manner of ructions in the country. In mid- was proceeding, and found that the entire Olympic April it was learned that armed British officers would be complex was poorly guarded. Thus at the main entrance, despatched to Athens in order to protect the British the arrival of an unmarked white transit van elicited no team at the Games, under plans drawn up by Scotland reaction from the bored-looking guards. The reporter and Yard. This was a reaction to the concerns over safety accompanying television crew was allowed to drive and security referred to above. This elicited an angry straight inside without anyone checking his identity. reaction from the Greek authorities, who insisted that Inside, the signposts read like a menu of potential no foreign armed police would be allowed on their targets for terrorist attacks. Everybody seems to be territory. They pointed out that 202 countries would be solely concerned with meeting the 13 August deadline, represented at the Olympics, which meant that chaos 123 at the expense of essential security concerns . would ensue if all were allowed to deploy their security 129 Fears over security at the Games were heightened forces for the event . when, in late May, Greek police had to defuse a small In spite of this strong reaction, it was known that the bomb planted outside a British car dealership in Athens. US was preparing to send some 150 federal agents, This had followed an anonymous warning given by who were expected to be armed, in order to protect its telephone. This was in fact the latest in a series of low- athletes, with Israel and other nations following suit. It level bomb attacks and attempted attacks, which added was expected that an unofficial deal would allow 124 to these fears . The Greek Prime Minister, Costas security forces from friendly nations, including Britain 130 Karamanlis, acknowledged that there was room for and the US, to carry guns . It also emerged that the improvement in the security arrangements, and Australian Olympic Committee (AOC) would have two announced that he had taken personal charge of the Qantas jets on standby, ready to evacuate their athletes Olympic preparations since his Government came to from the Games in the event of a terrorist attack. The 125 power . In early July, the Greek authorities conducted AOC was also reported to be considering employing a thorough “lockdown” operation, with security forces armed guards to protect the team, although he admitted being deployed at all the Olympic venues, after which that this would require the co-operation of the local 131 they were all swept for bombs and constantly authorities . It was also learned that the entire NATO monitored before the Games kicked off. However, this Mediterranean fleet would be part of the Alliance’s 132 operation was still hampered by the considerable delays contribution towards the protection of the Games . in the construction work, which continued to plague All these statements and preparations were 126 preparations . provoking increasing levels of indignation in Greece, and

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in mid-May the Government decided to end any sporting event when he ran onto the racing track at speculation in this regard through Col. Eleftherios Silverstone during the British Grand Prix in July 2003 and Ikonomou, a spokesman for the Ministry of Public was wounded by a marshal wrestling him to the verge. Order. Questioned on this issue by a leading British De Lima was later awarded the Pierre de Coubertin journalist, he stated that no intervention by foreign medal, the IOC’s highest award, for completing the 138 armed agents would be allowed, adding: race . Although some commentators blamed this “Security is our responsibility. It is the Hellenic incident on poor security, this could in no way detract police that will have the responsibility for the from the undoubted success which all concern had protection of the athletes. We have prepared for earned in keeping the games as trouble-free as possible. their security both at the Olympic sites and when Mr. Horan was later issued with a one-year they’re out shopping, for instance. When we have suspended sentence for disrupting the marathon. The teams which are considered high risk there will be court could have sentenced the Irishman for five years, special measures but there is no question of but apparently gave him a mere one-year sentence 133 139 foreign security personnel coming in” because of his questionable mental state .

He added that the special measures protecting Bomb blast at French football stadium athletes from high-risk countries such as the United In late May 2004, a bomb blast occurred at Monaco’s Kingdom and the US would include personal protection main football stadium, damaging offices at the ground. and security escorts, the use of security scouts in No-one claimed responsibility for the outrage at the Stade 140 certain areas, aerial surveillance of routes taken by Louis II, but no-one was injured as a result of the blast . athletes and, if necessary, changes to routes if the 134 original ones were deemed to be unsafe . Thai authorities ban orang-utan boxing However, several weeks later is became clear that, One of the less civilised forms of entertainment on for all this brave talk, concessions would eventually offer in suburban Bangkok of late has been the made, and in early June senior officials admitted that spectacle of boxing matches between apes staged at Greece could not prevent foreign guards protecting the an amusement park. Some 110 orang-utans were athletes of high-risk countries from carrying arms dressed up in boxing gloves and silk shorts, and forced outside the main security zone during the Olympics. This to spar for tourists at Safari World. Thai police have was in spite of the fact that any such prospect would in banned these fights and threatened to confiscate the principle be unlawful under the Greek constitution, apes, after Indonesian authorities attended a weekend which bars foreigners from bearing weapons on Greek show and denounced smugglers for supplying the bulk 141 soil, and thus made this an extremely sensitive issue, all of these fighting apes to Safari World . Earlier, the more so because of some public misgivings over the outraged members of the International Primate 135 Games, as has been mentioned earlier . The Protection League had challenged Safaris World’s Government, however, emphatically denied reports in claims that the show was harmless and that the animal the Greek media that Athens had secretly agreed to fights were as choreographed as American wrestling allow the US to provide its own armed guards. bouts. Orang-utans are an endangered species and live 142 In the end, it appeared that the hosts had the matter wild only on the islands of Sumatra and Borneo . well in hand, and the Games passed off without any major security alerts – well (as Captain Corcoran would Illegal bookmakers arrested in Hong Kong say) hardly any. What should have been the crowing In mid-June 2004, it was reported that Hong Kong police moment for a highly successful Games was marred by arrested nine suspected illegal bookmakers. In the a lapse in security which, however, had no process they seized HK$ 3.24 million worth of betting repercussions beyond the placing achieved by the slips, in a major crackdown on the surge of illegal betting unfortunate victim. which had started during the Euro 2004 tournament. During the Marathon event on the last day of the Unlawful bookmaking carries a maximum penalty of a 143 tournament, the Brazilian Vanderlei de Lima was well in HK$ 5 million fine and a seven-year jail term . the lead when a spectator appeared from nowhere and pushed him off the road. This was enough to make him Black market in ticket flourishes concede the lead to Italian Stefano Baldini, who went on during Euro 2004 136 to win the race with de Lima finishing third . The The majority of matches during the Euro 2004 assailant turned out to be Cornelius Horan a former tournament were fully booked long before they took priest who, as reported in an earlier issue of this place, which presented an opportunity for a massive 137 Journal , had already caused havoc at another major black market in tickets. The news that 50,000 England

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fans had flooded into Portugal for the tournament only thus far remained at the preliminary stages, with increased the temptation and the asking prices. For the various procedural issues being thrashed out. However, all-important opening fixture between France and in mid-August 2004, it was learned that the trial was England, the cheapest tickets were £500, whereas for definitely going ahead, despite a court ruling which the England fixtures against Switzerland and Croatia allowed the defence to bring evidence about the sexual 144 they were £325 and £275 respectively . activity of the woman who has accused him of rape. The prosecutors had attempted to persuade the judge Referee kills football coach who queried his to review the decision to allow details of the decision complainant’s sexual conduct around the time of her In late July 2004, a South African referee gave new encounter with Mr. Bryant. However, without offering meaning the term “dissent” when he shot dead a any reasons, the Colorado Supreme Court refused to coach and injured two players who had challenged one consider the appeal against a ruling by the trial judge, of his decisions. When the referee gave a yellow card who has stated that the woman’s sexual conduct was a 149 to a player during the match, between two local teams factor which was relevant to the case . in Eastern Cape Province, he elicited protests from the This column will obviously follow the trial itself with coach and team. The ensuing argument was settled in keen interest. the most definitive way possible by the referee, with a bullet which hit the coach of the Marcelle club in the Mistress who killed football star’s wife chest, as a result of which he died on the pitch. Two sentenced to death by Iran court 145 players were hit in the hand by the same bullet . In June 2004, it was learned that the mistress of an Iranian football star had been sentenced to death for murdering the wife of her lover. Following a one-week trial, held “Off-field” crime behind closed doors, Khadjieh Shahla Jahed was found guilty of the premeditated stabbing of Laleh Saharkizan, Australian tennis coach guilty of abusing the wife of the former football hero and top coach 14-year-old girl Nasser Mohammed Khani. If the sentence is endorsed 150 In July 2004, it was learned that a top Australian tennis by the Iran Supreme Court, she will be hanged . coach, who had trained mark Philippousis and Monica Mr. Khani, who was a star of Iranian football during the Seles, had been found guilty of sexually abusing a 14-year- late 1980s, was in Germany on a training trip at the time old girl. Gavin Hopper, who operates a Queensland tennis of the killing. Initially, he had been suspected of academy with former Wimbledon champion Pat Cash, was complicity, and detained for several months. He was found guilty by a jury on three counts of indecent assault released after his jealous lover confessed to having acted and six charges of gross indecency whilst being employed alone. The killer had been his temporary wife, which is a as a physical education instructor at a top school in the practice approved of in the Islamic republic. Their marital 1980s. The victim, now aged 33, informed Victoria Crown status meant that Mr. Khani could escape any charges of Court that she had a three-year affair with the tennis coach adultery. In a practice which is unique under Shia Islam, whilst she was a student at Wesley College in Muslim males in Iran may take on temporary wives for Melbourne. Hopper had kissed and touched the girl at his periods ranging from a few hours to several decades. home, and promised to leave his wife so that they could Nevertheless, Khani was sentenced to 74 lashes 146 live together in Queensland after she left school . after the judge found him guilty of having taken drugs In his defence, Hopper denied having written a letter with his mistress at their love nest in north Tehran. to the girl in 1987 inviting her to enjoy an afternoon of Shahla Jahed also faces the lash before her hanging – 151 “beautiful love-making” or dine by candlelight with Island for the same offence . Cooler, a wine-based drink. He maintained that the love letter had been written to his wife to celebrate the pair’s Chess champion Fischer to be extradited for second wedding anniversary in 1981. However, the court breaking sanctions was also told that Island Cooler was not available in The world of chess is not as a rule redolent of colourful Australia at that time. Following his conviction, Hopper, characters, but it is generally agreed that American 147 through his lawyer, indicated that he would appeal . Bobby Fischer was definitely the exception to this rule. Part of his heritage as a cult figure was the epic battles Bryant trial definitely goes ahead he fought over the chequered board with Boris Spassky The sorry affair of Kobe Bryant, the US basketball star in the 1970s, none more so than the “battle of accused of sexual misdemeanours, has already been Reykjavik” in 1972, dubbed by many the “match of the 148 reported in earlier issues of this organ . This case has century”. Twenty years later, a rematch between the

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two players took place in Yugoslavia, which Fischer won Former Springbok kills daughter by mistake again and earned $3.35 million in the process. However, In May 2004, a former Springbok rugby international this happened at the time of the Yugoslav Wars, at a was charged with murder after having mistaken his time when Yugoslavia was hit by United Nations daughter for a car thief and shot her dead in the family’s sanctions because of its human rights violations in driveway. Rudi Visagie assumed that his daughter, Bosnia-Herzegovina. Soon afterwards, a US Grand Jury Marlé, was asleep when he heard her car being driven charged Mr. Fischer with breach of these sanctions. away at 5.00am on a Sunday morning. He rose from his Actions thus taken against him thus far in pursuit of this bed, took a pistol and fired a shot through the bedroom charge have included suspending the validity of his US window. When he went to investigate, he found his passport. The American authorities had also over the daughter slumped behind the wheel having been hit in years persisted in their efforts to track him down and the neck by the bullet. A blood-stained present on the take him into custody, and they finally discovered that front seat suggested that she had been on her way to 152 he was living in Tokyo, Japan . Following an application surprise her boyfriend on his birthday without informing 158 for his extradition, Mr. Fischer was arrested as he tried her parents of the plan . to board an aeroplane for the Philippines. He was then The case had not yet come to trial at the time of detained whilst the extradition application ground writing. 153 through its procedures . Over a month later, the Japanese authorities decided Former French Rugby captain accused of that the extradition was warranted. However, Mr. killing wife 154 Fischer’s lawyers appealed against this decision , the In another case involving a former rugby international, it outcome of which was not yet known at the time of was reported in August 2004 that marc Cécillon had going to press. been arrested for murder after allegedly shooting his One person who was totally out of sympathy with wife at a party. Around 60 fellow guests, who had the proceedings being taken against Mr. Fischer was gathered in Bourgoin-Jallieu to celebrate the end of the his old rival, Boris Spassky. The latter, in a letter address rugby season, were said to have witnessed Mr. Cécillon to the Japan Chess Association, called on Washington pull out a handgun and shoot his wife Chantal three or to display leniency. He pointed out that he too had been four times. She was hit in the head and throat. The party to the sanctions infringement, and therefore shots were said to have caused panic amongst the should also be penalised. He ended “Arrest me and put guests. The former rugby player was himself said to me in the same cell as Bobby Fischer. And give us a have received a head wound in the confusion which 155 chess set” . followed, and was himself taken to hospital before being detained by police. It appeared that he had been Afghan football internationals disappear – under the influence of alcohol and had not sobered up 159 as illegal immigrants? until the morning . When the Afghan national football team arrived in Italy One of the guests later described how she had been on the eve of their first match in Europe for 20 years, aware of a disagreement taking place, and half an hour the manager suddenly found that nine of the squad had later saw a man come in with a pistol and start to absconded from their training camp in Verona. The shoot. Friends also said that the couple had been on 160 fixture against Hellas Verona was intended to mark bad terms for several years . The case had not yet Afghanistan’s emergence from the footballing come to trial by the time this issue went to press. wilderness and to raise money for charity. It had been organised by the Community for Solidarity among Rising stars of New Zealand rugby jailed for Peoples campaign, and was seen as part of the process beating pregnant girl of welcoming back Afghanistan into the global football The world of rugby league suffered a heavy blow when community. Instead, almost half the squad were it was learned that, in late May 2004, three rising stars suspected of having taken the opportunity to join the of the New Zealand game were jailed after having sizeable Afghan immigrant community in Germany, the beaten up a 15-year-old girl who was five months players had all handed in their passports, but police said pregnant in an attempt to make her miscarry. Shaun that they could not officially be declared missing until Williams-Metcalf, Geoffrey Ruaporo and Kyle Donovan their residence permits expired at the end of the were said to have lured the girl to a park in Auckland 156 following week . after she became pregnant by Williams-Metcalf. She In the event, six of the players were arrested in had driven to the park on the pretext of discussing the Germany the following week. The Afghan national side pregnancy with the player. However, her attackers 157 has since been disbanded . smashed open her car door with a rock and dragged her

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out before punching her in the head and kicking her in Beckham questioned by French police over the stomach. They took her mobile phone and then ran minder assault off. Fortunately, both the girl and her baby survived the That the security personnel who surround England ordeal. Williams-Metcalf and Ruaparo each received an football captain David Beckham and his family do not 18-month sentence. Donovan, who was said to have invariably act in the most scrupulous of ways has been made efforts to halt the attack, was issued with a 15- known to the general public for some time. However, 161 month sentence . their actions took on a new dimension in mid-July, The three players had been selected to tour when Mr. Beckham was in France. The local police internationally with the New Zealand under-16 side, and decided to question Mr. Beckham over claims that one were on a fast-track development programme for the of his “minders” threw a photographer into the sea. Warriors, New Zealand’s only team in the Australian The alleged victim, François Glories, claimed that he 162 National Rugby League . was 15 yards away from the footballer and his family in the French Riviera port of Villefranche-sur-Mer when the Football captain accused of child smuggling bodyguard dragged him to the water’s edge and threw In mid-March 2004, it was learned that Rwanda’s him in, along with £7,000 of equipment. He claimed this football captain, Désiré Mbonabucya, had been detained was totally unprovoked, and that the Beckhams did 166 by Belgian police, accused of smuggling at least one nothing but stand by and watch . child from the Central African country. Mr. Mbonabucya is a striker for Belgian First Division team St. Truiden. A US synchronised swimming star jailed Rwandan couple were also detained in connection with following driving charges 163 this case . During the immediate run-up to the Olympic Games in Athens, the US party held a series of press conferences Trinidad kidnap threat to England cricketers in an attempt to introduce the world to all its The England cricket team’s tour of the Caribbean during representatives at the Games. There was, however, one the spring of 2004 was undoubtedly a success on the notable exception to this process, to wit a competitor in sporting field, but carried considerable risks off it. Before the synchronised swimming event called Tammy Crow, embarking on their tour, the players were warned to be who was being entirely protected from the public eye 167 on their guard against kidnapping and violent crime, until the actual competition commenced . particularly during their visit to Trinidad for the Second The reason for this anonymity was the fact that Ms. test. The main reason for this was that Trinidad and Crow had been found guilty of driving charges which Tobago have become the second most likely place in the resulted in the death of her two passengers. As a result, world to fall victim to the crime of kidnapping for she was sentenced to 90 days’ imprisonment, even ransom. By November 2003, 40 such incidents had though the judge took the extraordinary step of allowing taken place since the start of the year, compared to 10 her to postpone the sentence in order that she could such incidents during the whole of 2001. Whilst the compete at the Olympics. She was also ordered to pay police report that most hostages are released unharmed $23,000 in compensation to the Slinger family. It after payment of the ransom, at least two were killed in emerged during the trial that Ms. Crow had been at a 2003, during which time there occurred a record 228 party the night before the accident occurred, where she murders on the islands. It was felt that the cricket acknowledged that she had been drinking, although she team’s high publicity profile might make them claimed to have done so only in moderation. At 4.40 am 164 particularly vulnerable to such kidnappings . the next morning, her boyfriend Cody Tatro woke her and persuaded her to make an early departure for a Former boxing champion found day’s skiing. Also accompanying them was a 12-year-old stabbed to death boy, Brett Slinger, to whom they had previously In mid-August 2004, Robert Quiroga, the former promised a lift. Because Mr. Tatro was tired, Ms. Crow International Boxing Federation super-flyweight champion, offered to drive. On an icy road leading to the mountains was found dead from multiple stab wounds on a she lost control of the vehicle, which spun off the road motorway near his home in San Antonio, Texas. He was and slammed into two trees. Both Tatro and Slinger 168 aged only 34. Earlier that night, Mr. Quiroga had been were killed instantly . seen drinking with friends in a bar some three blocks There was considerable controversy on the question away from the place where he was discovered. Police whether Ms. Crow should have been allowed to 165 said that there was no apparent motive for the attack . represent the US at the Olympics at all, hence the furtiveness which surrounded her participation in the competition.

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Danish athlete charged over car death sentence on the basis of the said ECJ case law. Another driving incident with fatal consequences However, the Bavarian Court of Appeal (Bayerische involving an Olympic athlete took place in Athens during Oberlandesgericht) was unmoved. It ruled that the ECJ the Games themselves. During the first week of had definitely established that, in principle, the licensing competition, a member of the Danish sailing team was requirement infringed the freedom of establishment and charged with manslaughter after a British caterer was the freedom to provide services as laid down in the EC run down and killed in one of the city’s official Olympic Treaty; however, it remained within the discretion of the traffic lanes, Errol Strachan, the caterer in question, died national courts to continue to impose restrictions on instantly after having been struck by a car driven by this type of activity if this was justified on grounds of Nicklas Holm, a sailor competing in the Star class at public policy. Such restrictions were particularly Athens. Mr. Holm, as well as his team-mate Claus permissible where they were inspired by considerations Olsen and their coach Thomas Jacobsen, had been of social policy, especially the desire to curtail the driving from the Athens marina site towards the damaging effects of such practices, as long as these handball stadium, where the Danish team were restrictions were not disproportionate. 169 scheduled to play, when the accident occurred . The Court also pointed out that the ECJ had also Mr. Holm was arrested by traffic police and charged ruled out any reliance on such social policy with homicide by misadventure. A blood test was taken considerations where the national authorities in following the accident, but after having spent the night question encouraged the population to take part in 170 in custody he was released following a court hearing . betting activities so that the state’s finances might No further details were available at the time of writing. benefit in terms of the income which is derived from betting taxation. This was not the case here. Serbian football chief shot in Belgrade In late March 2004, it was learned that Branko Tickets to major football fixture linked to Bulatovic, a leading football official in Serbia- surrender of guns (Haiti) Montenegro, was shot in the head in Belgrade. The An appearance by the football World Champions Brazil, unidentified gunman escaped. Mr. Bulatociv had especially one containing Ronaldo, would be sufficient previously been arrested in a cash embezzlement to induce most football fans to part with considerable inquiry at the time of UN sanctions during the Yugoslav sums of money. In the Caribbean state of Haiti, 171 Wars of the 1990s, but was later released . however, those wishing to be in attendance have been No further details were available at the time of writing. requested to part with their guns. In an original approach towards gun control, the new Government in Haiti has decided to issue tickets for a friendly fixture Other issues with the Brazilian national side in exchange for guns rather than cash. The Brazilian football authorities German courts stand firm on licensing declared themselves pleased to co-operate with this requirement for sports betting strategy in the knowledge that they would thus be 172 From previous issues of this Journal it will be recalled helping to reduce gun violence, which has assumed 175 that there have of late been a number of court cases in epidemic proportions on the island . Germany in which the licensing requirement for fixed- odds sports betting (the so-called Oddset betting) was examined from the point of view of the criminal law. 173 Since then, as has also been reported in this organ this issue has also been brought before the European Court of Justice (ECJ). The decision in that case was expected to have considerable repercussions for the manner in which the courts of the Member States approached the lawfulness of betting licensing requirements. However, judging by the case under review, the German judiciary seem to be unwilling to alter their stance even in the wake of the said Gambelli decision. 174 In the case under review , a sports betting operator who had incurred criminal penalties on account of lacking the required licence had appealed against this

64 Sport and the Law Journal Volume 12 Issue 2 3. Contracts

Media rights agreements evidenced by the protracted Steve Marlet affair. The [None] sale of Louis Saha from French club FC Metz to the Craven Cottage side appears also to be heading for litigation, judging by recent claims by the French club Legal issues arising from transfer deals that Fulham owe them £1.3 million over the deal. Mr. Saha played for the French club between 1997 Mutu loan fails because of Juventus and 2000, with a brief spell on loan to Newcastle objections United, before joining Fulham for £2.1 million. Metz Adrian Mutu, the successful Romanian striker employed claimed that they had a sell-on clause inserted into the by English premiership club Chelsea, has increasingly player’s contract which guaranteed them 15 per cent of attracted the attentions of other sides. One of these any future transfer fee. Saha was transferred to 180 was Juventus, the Turin side, who expressed interest in Manchester United in January 2004 , and several employing the striker for a limited period of one year. months later Metz claimed that they had yet to receive However, the deal came to grief in early August 2004 any payment from the £12.8 million fee paid for Saha by after the Italian club objected to the possibility that the United. Officials from the French side had attempted to Romanian international being sold to another club whilst contact their counterparts at Craven Cottage either at Juventus. The Italian club had agreed to pay the directly or through the French football authorities, but to player’s £60,000-per-week salary; however, Stamford no avail. Accordingly, they turned to world governing 181 Bridge had also demanded that Juventus should pay a £7 body FIFA for assistance . million transfer fee at the end of the loan period. This was When asked to comment, Fulham stated that they 176 unacceptable to the Italians, so the deal fell through . were aware of the claims, but gave no further details. What is certain is that Fulham will be loath to fall foul of “Tapping” rows continue FIFA again after their trials and tribulations over the The practice known as “tapping” is that whereby clubs Marlet affair. make illegal approaches to players of different clubs, in contravention of the rules on the subject issued by the world governing body FIFA. Recently, Barcelona and FC Employment law Porto have made official complaints to FIFA about allegations of unlawful approaches made by two English Olympics threatened by strikes Premiership clubs. One of the more traditional ploys operated by trade In early July, Barcelona president Juan Laporta unions over the years is to table demands of employers reported Manchester United over the conditions in which during the run-up to a major event or decision, in order the latter succeeded in signing Gerard Pique. Barcelona to take advantage of the urgency of the situation. This were of the opinion that in so doing, the top English side strategy seems to have been deployed to considerable contravened FIFA rules regarding compensation effect by the Greek unions during the period payments for the products of youth academies. United, immediately preceding the 2004 Athens Olympics. for their part, denied having acted improperly, adding that In late March, the largest Trade Union confederation 177 any compensation due would be forthcoming . in the country announced that it would press ahead Earlier, Barcelona had lodged a formal complaint with with strike action, starting with a nationwide one-day FIFA over the approach made by Chelsea for the services walkout. This news came as the newly-elected of the Portuguese champions’ coach, Jose Mourinho. It Conservative government indicated that many of the was alleged that, when Chelsea owner Roman public works associated with the Games could be cut Abramovich and the club’s Chief Executive, Peter Kenyon, back because of massive budget overruns. The were in Vigo, Northern Spain, they had sought to arrange a Confederation of Greek Workers warned the meeting with Mourinho’s agent, Jorge Mendes. The Porto Government of further action unless they met demands President was incensed about this back-door approach, for better pay and benefits. The threat was particularly 178 hence the complaint to FIFA . It was not yet known serious to the public transport system, which would whether this complaint produced any consequences. play a very important part during the Games, particularly 182 the prestigious opening ceremony . FC Metz claim Fulham owe them for Saha With little over a month to go before the opening transfer ceremony, Greek workers threatened to throw more 179 From previous issues of this journal it will be recalled than 800 hotels across the capital into chaos by staging that English Premiership side Fulham are no surprise stoppages if their long-standing demands were newcomers to transfer deal controversy, as is not met. This had the potential of disrupting the stay of

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thousands of visitors to the Games, including royals and Wales report Stade Français over Olympic dignitaries, who would be staying at the city’s release clause 40 most expensive establishments. One of the bones In early July 2004, it was announced that the Welsh of contention in this dispute appeared to be the rugby authorities had called upon the International “Olympic bonus” which had allegedly been agreed by Rugby Board (IRB) to take action against French club the hotel operators but was not apparently Stade Français for having offered the former Celtic 183 forthcoming . The hotel workers repeated their Warriors hooker Mefin Davies a two-year contract on industrial action with barely a week to go before the condition that he should retire from international rugby. Games opened, and threatened once again to repeat Mr. Davies, who had been unemployed since May such action during the games, although ultimately this when the Warriors were disbanded by the Welsh Rugby 184 did not prove to be the case . The Olympic bonus also Union, turned down this offer because he wanted to was the issue at stake when the city’s ambulance continue to play for Wales. His refusal meant that his crews and paramedics staged a four-hour work chances of securing a professional contract for the 188 stoppage to press demands for such payments. On that following season were greatly reduced . 185 day, the doctors also started a six-hour strike . In principle, IRB rules put the international game ahead of everything else. It was not yet known at the Latvian Olympic official dismissed over time of writing whether the complaint had produced drunken incident any effect. During the first week of the Athens Olympics, the Latvian Olympic Committee announced that it had dismissed one of its track and field coaches, Gints Sponsorship agreements Bititis, after airport security guards in Prague had to [None] remove him from a flight bound for Greece because he was drunk. The coach has also since been stripped of 186 his Olympic accreditation . Sporting agencies [None] G14 clubs confront FIFA on international release fees One of the long-running sores in relations between the Other issues top football sides and their national associations has [None] been the requirement that players be released for international duty whenever the latter so demand. So concerned have some of the leading European clubs become over this matter that they have started to study the legality of FIFA rules on such release for international duty. One of the many contentious issues in this regard is who pays the players for such services. In mid-March 2004, the G14 grouping of the European continent’s most powerful clubs met in Valencia, Spain, in order to consider this matter. According to a statement later released, the group had: “authorised its general manager to try to ascertain if the current provisions of the FIFA regulations by which clubs are obliged to release players for no payment and at conditions unilaterally imposed by FIFA are an infringement of law with regard to fair 187 trading” .

The group, which includes AC Milan, Manchester United and Real Madrid, was thus set on a collision course with FIFA President Sepp Blatter, who has always opposed compensation to clubs.

66 Sport and the Law Journal Volume 12 Issue 2 4. Torts and Insurance

Sporting injuries lighting pole in question did not constitute a danger Foé relatives taking legal action against French which the journey organiser did not need to take into football federation account. However, the sole fact that the claimant fell One of the saddest episodes of the footballing year over together with the lighting pole did not allow any 2003 was undoubtedly the death of Cameroon and conclusions to be drawn concerning the steadiness and Manchester City midfielder Marc-Vivien Foé during a solidity of the pole. Confederations Cup game between his country and It is true that, according to the relevant photographs, 189 Colombia . Many at the time commented that this the lighting pole was already in a rusty condition. event was a glaring indictment of the pressures placed However, several persons had already climbed up the on many of today’s players. In July 2004, it was learned pole, and the latter had held firm. Therefore there did not that the family of the Cameroonian footballer were to appear to be a danger so obvious as to make the take legal action against the French Football Federation replacement of the pole an immediate necessity, and the for breaching security rules. An autopsy showed that hotelkeeper could not be expected to take any special Mr. Foé died of heart-related problems whilst playing precautionary measures against children at play in that 190 the Colombia fixture . area at 9.00pm. Therefore, the travel organiser could not be held liable for the injury sustained by the child. Schumacher (R) plans legal action over broken vertebrae Duty of care on those playing “midget golf”; 193 In June 2004, Formula One racer Ralf Schumacher was Netherlands Supreme Court decision involved in a crash at 200 mph during the US Grand Prix The case under review concerned a game of “midget in Indianapolis. Several days later, he discovered that golf” in which a group of around 15 friends took part. this accident had caused two broken vertebrae in his They had divided into groups of two or three for this back, and was ordered to wear a corset and rest for a purpose. At a certain point, the claimant had finished month. He only learned about the extent of his injuries playing on his particular track, and ran towards the next after extensive tests in Germany, and was furious at the one where the defendant was about to tee off, standing delay with which these were established, as well as at at an oblique angle to her left. He saw how the the action of doctors in Indianapolis, whom he believed defendant hit the ball, and was following its course put him at risk of paraplegia by allowing him to fly home when he became aware of a stitch of pain in his right with a damaged spine 24 hours after the accident. He eye. He later established that the edge of the was said to be considering legal action over these defendant’s stick had hit him in the eye. One of the alleged shortcomings, which could cause him to be witnesses had also seen how the defendant, after 191 inactive over a considerable part of the season . hitting the ball, had swung her club so far to the left that she hit the claimant’s eye. The victim brought an Travel agent not held liable for accident by action for damages against the person whose action 192 child in sporting area of hotel had caused the injury. The first court had awarded the In the course of a holiday organised by the defendant, action; the Court of Appeal overturned this verdict. The an 11-year-old child followed the example of other matter landed before the Supreme Court (Hoge Raad). holidaymakers and climbed up the lighting pole of the The Court dismissed the action. It held that, on the sporting area of the hotel in question. The other basis of its previous case law on this subject, for the holidaymakers who had engaged in this activity had not higher threshold which is required for liability in sporting sustained any injury in the process. The child became situations to apply it is not necessary that those injured as a result of the pole snapping at a certain involved in an accident were competing directly against point. The family of the child demanded compensation each other or that the victim of the accident was at the on the basis of the German Civil Code. time when it occurred engaging in actions which are The Court dismissed the claim. It recalled that under characteristic for participation in the sport in question. the Civil Code provision relied upon, i.e. Article 651, a The victim in this case remained a participant, even if defect in the planned journey only arose where the he was not in direct competition with the defendant. actual journey provided by the organiser departs to such The fact that he was merely following the course of the an extent from the result set out in the contract that the ball once hit by the defendant did not mean that he had very nature and objective of the holiday package is lost his capacity as participant. Being a participant, the called into question. It recognised also that the lack of claimant was deemed to expect certain actions which care and diligence on the part of the organisers of the may to a certain extent be dangerous, badly co- journey could qualify as such a defect. In addition, in the ordinated and poorly timed. The action in question case under review, it could not be maintained that the which caused the accident could not therefore be

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attributed to negligence on the part of the defendant. is top establish exactly what is meant by “doping”, The Court accordingly confirmed the Court of Appeal given the various definitions which exist at the level of decision. the International Olympic Committee, the Council of Europe and the Austrian Olympic Committee. One of Operator of riding school held liable for the main problems to which this question also gives 194 injury to rider: Belgian court decision rise in the case of professional sporting performers is In the case under review, a 13-year-old girl was injured the assessment of loss of earnings. The author when she fell from a horse whilst riding at the riding examines all the various claims which could arise in tort: school operated by the defendant. The girl’s parents (a) by the performer (where he/she has been drugged took legal action against the operator, and the first court without his/her knowledge), (b) by the sporting club awarded the action to the claimants. The defendant against the performer, (c) by the organisers of the event appealed. against the performer, (d) by the spectator against the The court upheld the decision appealed against. The organisers, (e) by the sponsors against the drugged action was based on two grounds: contractual and tort performer, and (f) against the performer by his/her liability. As to the former, the Court held that the competitors. When dealing with the claims by the defendant’s contention in the school’s advertising performer, the author also examines the element of literature that all participants were “fully insured” was consent. Under Austrian law, consent by the victim only incorrect, as a result of which the defendant had removes the unlawful nature of the tortious act where committed a precontractual fault. In addition, the mere the injury or loss sustained does not infringe public display of a sign stating that the management could not morality. This is very much the case with doping. be held liable for any accident could not be pleaded against the claimants, since the defendant could not demonstrate that the claimants were aware of this at Libel and defamation issues the time of concluding the contract, and that they had [None] therefore consented to this escape clause. However, there was no proven causation between the precontractual fault on the part of the operator and the Insurance injury suffered by the child. Therefore, the action failed on this ground. Threat of terrorism and insurance of major As to that part of the action which was based on tort sporting events liability, the Court held that the applicable provision here Attention has already been drawn earlier to the potential was Article 1385 of the Civil Code, which deals with the for terrorist attack which is presented by various high- liability for animals. This liability was not transferred profile sporting events and tournaments. This aspect from the owner of the animal to the person who uses it has naturally exercised the minds of the organisers, and on the mere grounds that it is the latter who has the not only in terms of the protection which they need to animal under his/her control. For this transfer to take organise to counter this threat, but also the insurance place, it is necessary that the user has acquired cover they require to cover the possibility of a terrorist “mastery” over the animal, i.e. the degree of control attack – and not necessarily one which actually takes which is equal to that exercised by the owner. Since the place on the site of the Games itself. If an attack such victim of the accident was riding the horse under the as that which took place in Madrid in March occurred in supervision of one of the riding school instructors, it Athens during or just before the Games, the latter was the defendant who retained control over the would very probably be called off, with dire financial animal. The latter was therefore liable, on a joint basis consequences. with his insurer. In early May, it was reported that the cost of insuring the Olympic Games had risen sharply as a result of the Tort liability issues arising from doping: Madrid bombings which occurred on 11 March 2004 – 195 Article in Austrian journal more particularly the cost of insuring cancellation of the In this paper, the author Klaus Markowetz examines the Games. As a result, sponsors and television networks tort liability issues which may arise from the taking of had to pay over 30 per cent more in order to protect prohibited drugs in sport. Since the consumption of their investment in the Olympics. In addition, these substances is capable of producing far-reaching underwriters had become so concerned about the risk consequences for the health of the person in question, to the luxury vessels in the Piraeus harbour of Athens this falls within the scope of Article 1325 of the that they included a special Olympic review clause in Austrian Civil Code. One of the difficulties in this regard policies which allows underwriters to charge extra

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premiums if they are unhappy with the security several young people and adults milling around in front 196 measures taken . of the site, and saw several young people tugging and In all, the Games were insured against losses of over pulling at a parking sign which was mounted on the $1 billion in the event of a terrorist attack, according to pavement. None of the adults present intervened. industry insiders. That protection amounts to Several moments later he saw the traffic sign lying approximately 25 per cent of the loss caused by the Al- some three to four feet from the kerb. He then Qaeda attack on 11/9/2001. The highest-profile policy contacted the City’s Public Works department and written for the Games was that which was brokered by reported the damaged sign, then moved the latter to Marsh, the risk and insurance services firm in London, the edge of the pavement in an attempt to move it out and in April 2004, the International Olympic Committee of the way. (IOC) announced that it was purchasing a policy to cover One of the grounds on which the claimant based his $170 million by way of potential losses, including liabilities claim was that the parking sign had been designed in to national Olympic committees. Curiously, this is the first such a way that it would be more prone to fall and occasion on which the Olympics organisers have cause a nuisance if interfered with. It emerged that the purchased terrorism cover, even though the 1972 Munich signs in question were designed to break away Games suffered an attack by five Palestinian terrorists. immediately in being hit by a vehicle, thus causing the The US news channel NBC, for its part, also bought a minimum amount of damage on impact by a vehicle, policy to cover the possible loss of advertising revenue if and enabling them to be replaced as quickly as the Olympic programme is cancelled. NBC paid $793 for possible. The claimant maintained that the installation of 197 the right to broadcast the Olympics in the US . such breakaway sign posts in an area where The Euro 2004 football tournament, for its part, was pedestrians could be hit by falling poles created an not insured against cancellation in the event of a unreasonable risk of danger. terrorist attack. The tournament organisers believed that The court conceded that there were previous the event would not be a target because the US team decisions in which the courts had made property was not involved. Coming as it did just weeks after the owners liable for injuries caused in the public highway, Madrid bombing referred to above, in which 191 people but in none of these was the nuisance created as a were killed, this decision raised more than a few result of a conscious desire to protect at least some eyebrows in the game and beyond. However, the members of the public. It should be remembered that tournament organisers stressed that they had taken out the essence of the alleged nuisance, i.e. the weakening adequate insurance against death and injury to of the sign posts, was the intentional method of spectators, as well as for damage to stadiums and other protecting car drivers, and that the sign post did not 198 facilities during the matches . “fall” but was brought down through the application of a certain amount of force. The court also found that a different type of sign Other issues post which the claimant had put forward as a safer alternative was also designed to break away on impact, Canadian municipal council not held liable for and that the type of sign post used in this case was 199 injury suffered by hockey school instructor also used by other local authorities. Accordingly, it was In the case under review, the claimant was the head satisfied that, in this case, the city had not created an instructor at a hockey school in Merritt, British unreasonable interference with the public’s interest in Columbia. One day there occurred a fire alarm, and both health or safety, and was not held liable. students and staff left the building and gathered on the pavement outside the site of the school in order to await the fire-fighters. The claimant took a roll call, then returned, briefly, to the site. When he returned, he stepped on a parking sign which was lying on the pavement, and injured his foot. The instructor sued the City for this injury, claiming that it was liable in nuisance and negligence. One of the problems in this case was the evidence as to how exactly the parking sign came to be in the position it occupied at the time of the accident. The court accepted that the most probable version was that of the Head of the city’s fire department, who saw

69 Volume 12 Issue 2 Sport and the Law Journal 5. Public Law

Sports policy, legislation and Owens beat the German runners at the 1936 Games fell organisation into disrepair after the war. Now it has been modernised, and will be the centrepiece when Germany hosts the Olympics 2012: the race hots up World Cup in 2006. During the restoration work, builders 203 So intense has the competition to organise the Olympic found and defused a 500lb Second World War bomb . Games become that the contending cities seem to spend The restoration has tapped into a serious and often almost as much on the bid as on the Games themselves. passionate debate about the rights and wrongs of This certainly seems to be the case for some of the front saving the few Nazi-era buildings left in Berlin. runners in the race to host the 2012 tournament. However, it should be recalled that the Olympic site New York is a case in point. It has announced that it was not exclusively a Nazi preserve. The International is to buttress its bid for the 2012 Games by constructing Olympic Committee had awarded the Games to Berlin a new 75,00 seater stadium which will transform the before the Nazis came to power in 1933, and the Manhattan “Far West Side”. After months of argument, architect, Werner March, had already worked out the officials unveiled a $2.8 billion plan to erect a new home design for the stadium by 1933. for the Jets (the city’s exiled American football team) and nearly double the size of the Javits convention Israel to allow betting on racing centre adjacent to it. The result will be a development after 2,000 years stretching from 30th Street to 42nd Street along the Some rules in sport have a longer lifespan than others, Hudson River, which will be second in scope only to the but some record must have been reached by the ban on $12 billion rebuilding of the World Trade Centre after the race betting in Israel, which dates back to a rabbinical 11 September attacks. The city’s officials hope that this ruling in the oral Torah. The original rule was against project will strengthen their hand in its competition with pigeon racers, which had come to be interpreted as a 200 the other Olympic bidders . religious denunciation of gambling in general. In early The plans are not without their critics. The Mayor, Mr. August 2004, a Cabinet Committee headed by the Michael Bloomberg, sees this as a major opportunity to Finance Minister, former leader Benjamin Netanyahu, revive Manhattan’s run-down Far West Side, despite gave its approval to proposals from a group of Israeli and criticism that new office space in the area will draw foreign business entrepreneurs to build a £20 million 204 tenants away from the Downtown area affected by the racecourse, called the Hippodrome, in northern Israel. 11 September attacks, and that the presence of the This action has, however, angered religious hardliners 201 stadium will create considerable traffic jams . who believe that gambling is immoral and breeds However, not all the tactics employed by the licentiousness. Some religious authorities also believe competitors seem to have been above board. Thus that Jewish civil law should be interpreted as implying there was considerable criticism of the Madrid bid, that gambling profits are tantamount to theft, although because it was Juan Antonio Samaranch junior, the there is nothing explicit to condemn gambling as such. principal backer of the Spanish capital’s bid, who For some years, ultra-orthodox parties in Israel have requested that the Panorama programme alleging been demanding an absolute ban on gambling at corruption among some officials of the International casinos and on horses. Gamblers have circumvented Olympic Committee (IOC) (see above, p.53) be shown the ban on gambling on land by using floating casinos to IOC members. It will be recalled that the undercover on ships moored off the Red Sea resort of Eilat. reporters acting for the BBC had passed themselves off One concerned minister, Zevulun Orlev, protested as businessmen wishing to secure an advantage for that the racetrack would expose the less wealthy to the 205 London in the bidding process. Having viewed the false hope of easy money . programme, the members were quite satisfied that London had nothing to do with any attempt at bribery, Barcelona prepares for total ban on which led to accusations that Madrid had been bullfighting attempting to use the programme in order to discredit The practice of requiring animals to fight for the 202 or damage the London bid . delectation of humans has always occupied a questionable position in the world of sport. Even in Berlin exorcises ghosts of Hitler stadium those countries with well-established traditions in this In early July 2004, it was announced that Germany had regard, such practices are becoming increasingly open completed the reconstruction of Hitler’s Olympic stadium, to question. This is even the case in Spain, where and planned to put the arena at the heart of its quest to bullfighting has been a form of public entertainment for recover its status as a major footballing power. The many centuries. In Barcelona, it looks as though the stadium where Hitler angrily watched the sprinter Jesse practice might well be outlawed ere long.

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Opponents of the practice gained an important Athens Olympics make the deadline – just victory in early April 2004, when the city council won a This column, in this and previous issues, has charted the motion condemning it. This is seen as a first step course of the various preparations made by the Greek towards an outright ban. The resolution to oppose the authorities for one of the major events in the sporting practice came after councillor had received a petition calendar, i.e. the Olympic Games, held this year in from animal rights groups signed by 245,000 people in Athens. However, even those who harboured the most 30 countries. It would allow bullfighting to be outlawed serious doubts as to whether the organisers would meet in the region of Catalonia, of which Barcelona is the the deadline have been proved wrong – but only just. capital. Before the all-important vote was taken, By mid-March 2004, there still seemed plenty of scope demonstrators had gathered outside the city hall waving for scepticism about the progress made in completing the 206 placards stating “Barcelona against bullfighting” . work scheduled. The main stadium was still a concrete As a result of the vote, the councillors would now shell which still lacked some of the basic attributes – such propose a three-point ethical statement to the regional as a roof – and the aquatic centre was equally destitute of 211 parliament, the Generalitat, aimed at supporting a various essentials . Alarm bells were also set ringing regional ban. The previous summer, the regional when the test event for the swimming competition, parliament had already banned children under 14 from which was due to have taken place in mid-April , was 207 attending bullfights . cancelled. This decision was taken within days of a meeting between Jacques Rogge, the President of the Russian tennis success: product of International Olympic Committee (IOC), and the Greek public policy Prime Minister Costas Karamanlis, at which the The sensational success of Maria Sharapova, who organisers were given a two-week deadline to make the became Wimbledon singles champion in 2004 at the “tough decisions” required to ensure the completion of tender age of 17, is not the first success which the several venues and transport systems in time for the 212 Russians have enjoyed in this sport. Nevertheless, it Games to start . Preparations were plunged into further seems that Ms. Sharapova’s success may well be crisis by the news that the main stadium would only be emulated by many of her compatriots in the near future. completed three weeks before the opening ceremony. One of the reasons for this is the fact that Russian sports This meant that several test events would be taking place 213 policy has for some time now been geared towards with construction workers still on site . 208 improving the nation’s performance in this sport . Another element which was increasingly clouding the One of the major turning points in Russia’s tennis Olympic horizon was the cost of the entire project. By late fortunes was 1988, when tennis became an Olympic March it was learned that the Athens Games had already sport. The old Soviet system was very much geared exceeded their budget by £3 billion, and that therefore towards obtaining success in Olympic sport at the more projects could be trimmed in order to reduce expense of other disciplines, and thus tennis became a spending. (This was also one of the reasons why some priority area. This approach intensified with the commentators feared that this posed a further risk to accession to power of Boris Yeltsin, a great enthusiast security and vulnerability to terrorist attack – see above, for the sport. Mr. Yeltsin continued his official interest in p.58.) One of the reasons for this overrun was that the the sport even after he relinquished power in 1999. It is rush to overcome construction delays had increased expected that this guided approach will pay handsome costs, and many local commentators feared that this 209 dividends for Russian tennis over the years to come . would saddle the Greek population with considerable 214 debts in the future . In fact, it was confidently estimated Boules finds its way to the “Bac” (France) that it could take Greece over a decade to repay a £24 The French education system has always had a billion deficit created by the ballooning cost of the 215 reputation for being one of the soundest in the world. Games . Predictably, the new Conservative government 216 This is why several eyebrows were raised at the news blamed all this on the outgoing Socialist administration . that, this year, a dozen school pupils in Provence have As April turned to May, there were still plenty of signs become the first to take the secondary education that preparations would have to take on the form of a certificate, known as the baccalauréat (or le bac in hasty operation. Thus the 26-mile course for the last colloquial speech) in the sport of boules, which has day’s showpiece event, the Marathon, remained at a very been elevated to the national curriculum in physical early stage of construction, with much of the course having education. The Lycée La Floride, a vocational training been dug up or dotted with duct tape, craters, water school in Marseille, persuaded the authorities to pipes and roaming sheep. Yet another factor in the delays approve the sport as a baccalauréat subject for pupils was beginning to come to light, in that many small, 210 ruled physically unsuited to more arduous disciplines . inexperienced enterprises were given large-scale projects

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on grounds that owed more to nepotism than ability. In was neither a veterinarian nor a scientist, but, somewhat addition, several construction projects had been delayed by incongruously, an avid reader of obituaries of her local the discovery of archaeological treasures, or by locals using newspaper. She claimed that an unusually high number an inadequate legal system to resort to the courts trying to of CJD deaths were occurring in recent years in and 217 prevent the construction of various sporting venues . around her nearest town, called Cherry Hill. She had The trepidation felt by the Olympic world at developments noticed that these victims either worked at, or were was not assisted either when a senior Greek official visitors to, the Garden State racetrack in Cherry Hill questioned whether it was right for Athens to be hosting which had closed down a few years before. She began the games at all, given the amount of work involved. to wonder whether these victims had eaten at the Addressing a parliamentary committee, Giorgias Souflias, cafeteria at the track, and, if so, whether they had the Public Works minister, expressed his doubts about partaken of beef contaminated with BSE. Her Greece being best suited to organising the tournament in investigations led her to answer in the affirmative. The 218 the light of the size of the infrastructure projects . decisive moment arrived when she happened upon the In spite of all these setbacks, hopeful signs were case of John Webber, who died in 2000. The medical emerging that the organisers had grasped the urgency examiners said that he had been the victim of sporadic of the situation and that everyone concerned was CJD. She decided that she had to contact his family. making a massive effort to meet the deadline. In mid- What followed was, as she later described, it, her May, the much-discussed roof on the main stadium was “eureka” moment. The brother of the dead man 219 fitted and found to operate according to plan . With confirmed that the latter had a season ticket to the 222 less than a month to go, it became clear that the other racetrack and that he ate there at least once per week . building projects were very near completion, thanks to a This led her to contact two prominent members of sudden burst of activity. It was said that the Greek the US Senate, who in turn demanded an urgent official team’s unexpected victory in the Euro 2004 football study by medical experts from the Centres for Disease tournament had led to a marked change in the public Control (CDC), based in Atlanta, Georgia. This gives rise sentiment, and doubled their determination to make the to the possibility that the US may be on the brink of the 220 Games a success . same trauma which afflicted Britain after the first cases When the big day arrived on 13 August, everything of BSE were discovered in the late 1980s, and, ten was ready. However, not everyone was happy with the years later, when CJD also began to cause devastation 223 outcome. Not only was there the cost overrun which amongst the nation’s livestock . would settle the Greek citizen with an enormous debt to repay, as has been mentioned above. There had also been some environmental damage in the process of the Nationality, visas, immigration and preparations, and the World Wildlife Fund claimed that related issues Greece had reneged on its promises by irreversibly damaging the environment around Athens in the Palestinian athlete barred from Olympics 221 process . Just before the opening ceremony was to inaugurate proceedings at the greatest sporting festival the world over in Athens, it was learned that the Greek javelin Public health and safety issues thrower, Sofia Sakorafa, who had gained Palestinian nationality, had been barred from competing in the Cause of CJD traced back to racecourse (US) Palestinian team by the International Olympic Committee. Memories in this country are still fresh of the BSE scare At a news conference, Ms. Sakorafa commented that not which ravaged the British beef industry and crossed to allow her to compete at the 2004 Games infringed the 224 over into the human population, to be followed by its Olympic ideals of friendship among nations . equally lethal variant, Creuzfeldt-Jacob disease (CJD). Thus far, the US seemed to have escaped this disease – or so it was thought until recently. A number of public Other issues figures on the other side of the Atlantic have started to make worried noises about the possible extent of the Mandela sells tennis racket for charity disease in their country. It appears that one of the In July 2004, an unprepossessing metal-framed tennis events which triggered off this concern was a small- racket used by former South African president Nelson time investigation by an amateur sleuth, and centred on Mandela whilst he was imprisoned at the infamous a racecourse in New Jersey. Robben Island went on sale. The proceeds went to the 225 The amateur sleuth in question, Ms. Janet Skarbek, Mandela Trust, an anti-Aids and children’s charity .

72 Sport and the Law Journal Volume 12 Issue 2 6. Administrative Law

Planning law which arose from such use had to fall within the jurisdiction of the administrative courts. Becker bows to Majorca planners over luxury villa There is a story doing the rounds of this Journal’s Municipality ordered to pay damages for editorial circles that Boris Becker, the former Wimbledon sound nuisance emanating from basketball 228 champion, and the author of this column have concluded pitch: French Supreme Court decision a secret pact whereby the latter will have featured under In this case, the Administrative Court of Appeal (Cour every single heading of this column before their demise. administrative d’appel) of Paris had ordered the Regardless of the truth of any such rumour, it is a fact municipality of Moissy-Cramayel to pay the sum of FF that Mr. Becker, following his brushes with the criminal 50,000 to the inhabitants of an area close to a basketball and civil courts featured in earlier editions, has now made ground, because of the noise nuisance which the it into this rubric thanks to a dispute with the Majorcan sounds emanating from this ground was causing them. authorities concerning his luxury villa on the island. The court had made this order on the grounds that the For two years, Mr. Backer was caught up in an mayor of the municipality had been negligent by failing argument with the planning authorities after to take the necessary measures to restrict access to a constructing a £500,000 extension to his house in Arta sporting ground situated next to their property in order without official sanction. He was initially fined the sum to reduce the sound nuisance which resulted from the of £145,000 by way of fine for this infringement. use made of that ground. The municipality had applied However, the penalty was halved on appeal after he for review of this decision before the Supreme declared himself willing to comply with an order for the Administrative Court (Conseil d’Etat). 226 demolition of the extension . The Conseil dismissed the application. The municipality claimed in its application that, by basing its decision exclusively on the liability incurred by the Judicial review (other than planning municipality for negligence on the part of the mayor to decisions) use his policing powers, the Administrative Court of Appeal had committed an error of law and inadequately Complaint against use of church community reasoned its decision. The Supreme Court disagreed. site as sporting area is administrative By ruling that the mayor in question had, by failing to 227 matter: German court decision use his policing powers and issue a regulation aimed at After a church community had allowed youth groups to reducing the noise emanating from the sports ground, use their area for regular meetings, matters took on a committed an error capable of engaging the tort liability momentum of their own and the groups in question of the municipality, without qualifying this as a serious started using that area for football and other sports. This error (faute lourde), the Administrative Court of Appeal gave rise to complaints, and inhabitants of the had not committed an error of law. Having taken this as surrounding area brought an action in discontinuation the legal basis for its decision, the Conseil was not before the local administrative court (Verwaltungsgericht). compelled to reply to all the grounds put forward by the The latter held this action to be inadmissible since it was municipality seeking to prove that the mayor had not not an inherently administrative matter, and referred the committed any error, and did not give to the facts a claimants to the civil courts. The complainants in mistaken legal qualification. question appealed against this decision before the The Court therefore confirmed the decision of the Bavarian Administrative Court of Appeal Administrative Court of Appeal. (Verwaltungsgerichtshof). The Court allowed the appeal. It accepted that not every activity of a church community governed by Other issues public law (kirchliche Körperschaft des öffentlichen [None] Rechts) must fall within the scope of public law merely because of its status. It was also not unusual for these communities to use their powers of disposal over their land to allow these to be used by third parties – in which case the private law would apply. However, this was not the case in the matter under review. We were dealing here with the use of the land in question by church youth groups, of whom it could not be denied that they were public law organs. Therefore, disputes

73 Volume 12 Issue 2 Sport and the Law Journal 7. Property Law

Land law including Ms. Edwards, had withdrawn to take part in 232 [None] the latter’s rival event . The outcome of this case was not yet known at the time of writing. Intellectual property law Copyright of photographs taken at two Wearing of wrong logo capable of causing sporting events. French Supreme Court spectator ejection at Olympics decision233 With approximately a month to go before the opening In the case under review, the claimant organised a ceremony of the Athens games, it was learned that sporting event every year named Trophée Andros. The spectators could be forcibly removed from the various CDO company also organised a sporting event on an stadiums if they wore clothing bearing “obvious logos of annual basis called Les 24 heures sur glace de competitive (sic) companies to sponsors”, under the Chamonix. In a report on the Chamonix race, the relevant rules issued by the organisers of the Games. defendant MPF company used photographs taken The restriction extended to hats, T-shirts, bags and other during the Trophée Andros from which they had “commercial items”. However, it was emphasised that removed all mention of the actual name of the race. In spectators would not be ejected for wearing clothing the accompanying article, MPF wrote that the which inadvertently advertised competitor companies. photographs had been taken at Les 24 heures de The prohibition was intended as a means of preventing a Chamonix. As a result, the claimant sued MPF for “commercial coup d’état” (otherwise known as damages under Article 1382 of the French Civil Code 229 “ambush marketing”) in the stadiums . (tort liability) and under the French Intellectual Property It was intended to prevent sponsors being hijacked Code. The Court of Appeal of Versailles had ruled that in an orchestrated way rather than preventing people the claimant’s intellectual property rights had not been wearing a particular T-shirt. In fact, the object was not violated. The claimant applied for review to the to target individuals but concentrate on groups. If a Supreme Court (Cour de Cassation). party of around 20 people were observed sitting in a The Supreme Court ruled that organisers of sporting row wearing hats of a non-sponsor company they events owned intellectual property rights over the would be removed. However, even this clarification still photographs taken during such events. It accordingly left some confusion as to what precisely would set aside the decision of the Court of Appeal. constitute a “group”. This issue had attracted the attentions of the Greek branch of Amnesty Various academic articles on intellectual International, which feared that freedom of expression property rights in sport 230 234 could be among the victims of this measure. In the latest issue of a sister journal , the author Jose Ultimately, there were no recorded cases of any Rey examines how the relationship between ejections made in the circumstances described above. professional football and the media has developed in Spain, and focuses on the club’s requirement that their Edwards sued by rival over round-the-world players should, in their contracts of employment, yield voyage idea their broadcasting and personal image rights. He also In late April 2004, the French round-the-world notes that the intellectual property position in this yachtsman Bruno Peyron initiated court proceedings regard differs in Spain from that in other EU member against his rival, British yachtswoman Tracy Edwards, states such as France, Germany and Britain. He claiming that the latter had stolen his idea of a non-stop, discusses the current position, which witnesses the no-limits race around the globe. Mr. Peyron alleges that two largest clubs in Spain, Real Madrid and Barcelona, two competitions planned by Ms. Edwards, with the conducting negotiations with broadcasters which are financial support of the Gulf state of Qatar, for 2005 and separate from other league clubs. 2006 were copies of his 2001 “The Race”. Both Mr. In “Legal principles applicable to the centralised Peyron and the “The Race” organisation are suing Ms. marketing of TV broadcasting rights in German,”, Martin Edwards and three of her companies for damages over Schimke examines the background to and legal “unfair competition and prejudice caused to any future implications of the negotiations currently held in 231 editions of The Race . Germany concerning the media rights to Bundeliga French sources had reported that Mr. Peyron had football fixtures. He considers the ownership of such been compelled to cancel the second edition of The rights, the importance attached to being the organiser Race, which had been scheduled to start from Marseille of an event and the position of the League Association in February 2004, because several competitors, in this context. He explains why, for the purpose of

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controlling broadcasting rights, each individual club Article 87 of the Treaty, and specifically that the rules on hosting a match forms a legal community with the state aid should be applied to the building of sporting League Association and has joint utilisation rights under stadiums in those cases where it is clear that such Article 744(1) of the German Civil Code. In addition, he projects are favouring specific clubs rather than the observes that the European Commission is currently wider public interest. examining the consistency with EU law of the In “State aid to professional football clubs: legitimate centralised system of marketing television broadcasting support of a public cause?”, Marjan Olfers compares rights (see below, p.81). the approach to state aid for sporting organisations In “Ownership of TV rights in professional football in taken by the authorities in the US and those in the EU, France”, Delphine Verheyden analyses the pressures focusing in particular on the Netherlands. She argues in which are brought to bear by footballing organisations in favour of giving sporting organisations wider social and France to modify the requirements of Law 84-610, public interest exemptions from EU competition law, which organises sport, including the ownership of more specifically from the restrictions on state aid television rights. This has resulted in Law 2003/708. contained in Articles 87 and 88 of the EC Treaty. The author notes the amendments which have been Finally, in “The professional club leagues in Portugal: introduced by the 2003 amendment, with particular what legislative reform?”, Jose Manuel Meirim, in a reference to the sale of broadcasting rights and the paper given at a conference organised by the relationship between the clubs, their Association and Portuguese League of Professional Football at its the Football League. headquarters in Oporto (April 2003), discusses the In “Ownership, exploitation and competition issues”, Government’s proposals for the comprehensive reform Luca Ferrari examines the legal rules applicable in Italy, of sports law, focusing on the implications for via national and EU legislation, to media rights professional leagues of sporting clubs. He analyses the concerning football matches, focusing on the Football status of Leagues within the existing legal context, their League club’s ownership of such rights and their role as regulators of their sport, and their relationship commercial utilisation. He uses various tables and with the clubs, the sporting federations and the state. diagrams to demonstrate the extent to which these He asks the question whether the Portuguese rights are exercised through radio, free-to-air television, government has given serious thought to what would and pay-television in the context of the freedom of the replace the rules which it wishes to reform. He notes press. He discusses the competition issues which arise some of the issues which would underlie any reform, in connection with the collective selling of broadcasting and concludes that this is more likely to be motivated rights, and considers the implications of involving the by action emanating from European governing body new media, such as mobile telephones. UEFA, or by economic pressures. In “Restrictions on the freedom of information in sport”, authors Annette Mak and Bert-Jan Van den Those stripes again. European Court of Akker examine the problems associated with achieving Justice gives definitive judgment in a proper balance between the constitutional right on the Fitnessworld case part of the general public to the free flow of The owner of a trademark having a reputation cannot information, and protecting the intellectual property prevent the use of a similar sign viewed purely as a rights of parties to sporting contracts, with special decorative motif. By contrast, there can be an reference to the Netherlands law. They discuss the infringement to the mark with a reputation when the approach by the Netherlands towards the issues of degree of similarity between that mark and the sign has protection and copyright, trademarks, database rights the effect that the public establishes a link between the and broadcasting rights. In addition, the authors sign and the mark without necessarily confusing them. 235 compare the Netherlands approach towards the news That was the verdict of the European Court of Justice media with that of the authorities in Belgium and other in the most recent of the many Adidas case, for which, member states of the EU. as was reported in a previous issue of this journal, the 236 In “Stadiums for FIFA World Cup Germany 2006 and Advocate-General had already given his opinion . European law on State aid: a case of infrastructure Adidas is the proprietor of a trade mark, registered in measures?”, Michael Gerlinger examines the project the Benelux, formed by a motif consisting of three financing mechanisms applied for the purpose of vertical stripes running parallel which appear on sports funding the construction of football grounds for the FIA clothing. Fitnessworld markets certain sports clothing World Cup to take place in Germany in 2006. He argues bearing a motif similar to Adidas’, but composed of two that the public authorities should enforce a stricter vertical stripes, not three. Adidas brought an action interpretation of the restrictions on state aid under against Fitnessworld before the Netherlands courts,

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claiming a likelihood of confusion between the two motifs on the part of the public. Fitnessworld thus takes advantage of the repute of the Adidas mark and impairs the exclusivity of that mark. Fitnessworld believes that the motif is viewed purely as an embellishment by the relevant section of the public and there cannot, therefore, be an infringement of the mark. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), before which the case finally came, referred several questions to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of the Community directive on trademarks. The Court found that it is not necessary for there to exist a likelihood of confusion between the sign and the mark with a reputation in order to claim infringement of that mark. It is sufficient if the relevant section of the public establishes a link between the sign and the mark even though it does not confuse them. However, the Court has specified that where, according to a finding of fact by the national court, the relevant section of the public views the sign purely as an embellishment, it does not necessarily establish any link with the mark with a reputation. It follows that the proprietor of the mark with a reputation cannot prevent the use of that embellishment by a third party.

Other issues

Another “million dollar baseball” case in the making? 237 The reader may recall, from an earlier issue the case of the ball hit by baseball star Barry Bonds, which ended up as an extremely expensive court case fought over the question as to which spectator had caught it. History could repeat itself if a similar case is allowed similarly to go down litigation road. During the third innings of the fixture between Texas Rangers and St. Louis Cardinals in mid-June, a ball came hurtling towards four-year-old spectator Nick O’Brien. As he rose to catch the ball, Matt Starr, a former youth minister, dived across to grab the ball, striking the child on the leg and knocking him over as he stood up to brandish the trophy. However, the aggressive catcher was caught himself – by the television cameras, and Mr. Starr’s fellow-spectators were sufficiently incensed to make him leave the match 238 earlier than he would normally have done . It was not known at the time of writing whether this case would see the inside of a court of law.

76 Sport and the Law Journal Volume 12 Issue 2 8. Competition Law

National competition law

G14 group to sue FIFA under Swiss competition law The increasing disenchantment by the association of top football sides in Europe, known as the “G14” group, with the current state of affairs as regards the terms on which their players are expected to be released for international duty has already been commented on earlier from the point of view of employment law (above, p.000). It would now seem that there is also a competition law angle to this dispute. In early April 2004, the Group lodged a complaint against the Zürich-based world governing body under Swiss anti-trust law over the requirement that players by thus released without 239 compensation for the clubs involved .

EU competition law

Italian MEP seeks clarification on legality of remuneration paid to amateur football managers240 In February 2004, Generoso Andria, an Italian MEP, took advantage of the European Parliament’s Question Time to seek clarification from the European Commission on the consistency with EU competition law of certain practices operated in Italian football. Mr. Andria pointed out that, in Italy, the chairmen of amateur football clubs often incur considerable expenses without any reward apart from their love for the game. Yet, on the other hand, other directors in Italian football, from the President of the Italian Football League to its board members, are known to receive remuneration of thousand of euros in the form of a per diem allowance in order to cover their expenses – which are questionable from a fiscal point of view – and succeed in circumventing the provisions of Article 10 of the law governing the Italian Football Federation (FIGC), under which the duties performed by its officers may not be remunerated, and under which no office in football may be held by those who derive financial gain from their involvement in football. Mr. Andria sought to establish whether this situation amounts to a distortion of competition in a particularly sensitive sector, or involves serious irregularities. At the time of writing, the Commission’s reply was not yet known.

77 Volume 12 Issue 2 Sport and the Law Journal 9. EU Law

Parliamentary questions on discrimination g) developing the European dimension in sport, by re access to Spanish sporting federations promoting fairness and openness in sporting In late December 2003, various questions were tabled competitions and cooperation between bodies by Spanish MEPs concerning the possibility that the responsible for sports, and by protecting the physical conditions for access to sporting federations in Spain and moral integrity of sportsmen and sportswomen, might infringe the non-discrimination principle set out in especially young sportsmen and sportswomen. various EU instruments. They maintain that, in Spain, there are serious cases 3. The Union and the Member States shall foster of discrimination against children with regard to their cooperation with third countries and the competent access to sporting leagues, in terms of administrative international organisations in the field of education red tape or the refusal on the part of the sports and sport, in particular the Council of Europe. federations to allow them to join on the basis that the situation of their families is not regular or is in the 4. In order to contribute to the achievement of the process of being regularised. These affect mainly the objectives referred to in this Article, children of immigrants. The MEPs allege that this a) European laws or framework laws shall establish amounts to illegal discrimination under the Convention incentive actions, excluding any harmonisation of the on the Rights of the Child and the EU’s Charter of laws and regulations of the Member States. They shall 241 Fundamental Rights . be adopted after consultation of the Committee of the Regions and the Economic and Social Committee. Sport to be officially recognised by the EU b) the Council of Ministers, on a proposal from the Constitution Commission, shall adopt recommendations » The EU constitution, which is now going through 242 various ratification procedures in the member states, EURO 2004 feels free to say no to smoking will devote a section to sport, more particularly Article On the pitch, it was anyone’s guess who was going to III-182, which reads as follows: emerge victorious from the EURO 2004 tournament. « The Union shall contribute to the development of However, for all those watching the match, the clear quality education by encouraging cooperation between winners were non-smokers – as UEFA has dedicated Member States and, if necessary, by supporting and the day of the match to non-smoking. One of the complementing their action. It shall fully respect the practical consequences will be that football fans responsibility of the Member States for the content of watching their teams in Lisbon’s Luz stadium will not be teaching and the organisation of education systems exposed to passive smoking. The symbolic smoke-free and their cultural and linguistic diversity. EURO 2004 day will be celebrated together with “Feel free to say no”, the EU’s anti-smoking campaign The Union shall contribute to the promotion of targeting young people. Two new campaign television European sporting issues, while taking account of its commercials were shown on the screens of the specific nature, its structures based on voluntary stadium to further promote the smoke-free day. Further activity and its social and educational function. activities in Lisbon that day included a 17 metre long “Feel free to say no” campaign truck with a stage 2. Union action shall be aimed at: which will be used for games, quiz shows, competitions a) developing the European dimension in education, and live performances by pop bands. The basis for the particularly through the teaching and dissemination symbolic smoke-free EURO 2004 day is a cooperation of the languages of the Member States; agreement signed by UEFA President Lennart b) encouraging mobility of students and teachers, inter Johansson and EU Health and Consumer Protection alia by encouraging the academic recognition of Commissioner David Byrne just before the kick-off of diplomas and periods of study; the 2002 World Cup. c) promoting cooperation between educational David Byrne commented: establishments; d) developing exchanges of “The launch of the ‘Feel free to say no’ campaign in information and experience on issues common to the May 2002 coincided with the kick-off of the 2002 education systems of the Member States; World Cup. So I was very pleased that UEFA teamed e) encouraging the development of youth exchanges up with the EU for the fight to stop young people and of exchanges of socio-educational instructors smoking. 8 out of 10 people who smoke start and encouraging the participation of young people in between the ages of 12 and 18. Once they are democratic life in Europe; hooked by the nicotine, these people no longer have f) encouraging the development of distance education; a real choice. They are trapped. That is why we

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want young people to feel free to say no to tobacco Over 95% of the 800,000 recreational craft produced while they still have that choice. Well-known each year worldwide are motorboats. These boats are footballers – who were later joined by international frequently used in recreational areas in coastal zones pop stars – helped us to grab the attention of young and in lakes, where low ambient noise is often a people. The credibility of such non-smoking stars significant but scarce natural resource. Furthermore, the supports the message ‘Be cool – don’t smoke’.” use of these boats is largely concentrated during the summer period, leading to high levels of local air and New print advertisements water pollution caused by their exhaust gases. To The two television commercials to shown in Lisbon’s reduce this negative environmental impact, the Luz stadium were broadcast throughout Europe by Commission proposed in October 2000 to amend national and Europe-wide channels such as Eurosport. Directive 94/25/EC with a view to limiting emissions of At the same time, new print adverts of “Feel free to air pollutants and noise originating from such craft. say no” are being published in all major youth The new Directive also requires the European magazines in EU Member States. The advertisements Commission to study the possibilities of further have an eye-catching layout and use provocative buzz improving the environmental characteristics of words such as “Target”, “Victim” and “Slave” to make recreational craft engines. The Commission will submit young people aware of the intentions of the tobacco a report on its findings by the end of 2006, and if industry. National versions of the television commercials appropriate, submit legislative proposals to the and the print adverts were produced in close European Parliament and the Council of Ministers by cooperation with the campaign’s national headquarters. the end of 2007. In addition, the amending directive introduces a European Commission welcomes the number of modifications to the basic requirements of 243 adoption of new rules for recreational craft Directive 94/25/EC, with the aim of further enhancing In May 2003, the European Commission welcomed the the free movement of recreational craft and their adoption by the European Parliament and the Council of components within the internal market. Ministers of a new directive on recreational craft. This These modifications extend the scope of the new directive, which amends the recreational craft Directive to personal watercraft, and provide for an directive (94/25/EC), extends its scope to include extended range of conformity assessment modules personal watercraft and complements its design and leaving a wider choice to boat and engine construction requirements with environmental standards manufacturers to demonstrate that their products in regard to exhaust and noise emission limit values for comply with the design and construction requirements recreational craft. The new Directive succeeds in of the Directive. meeting both single market and environment protection needs, whilst sustaining competitiveness of the Bathing Water Report 2003: continued 244 recreational craft manufacturing industry. Following the quality improvements in the EU15 Parliament and Council agreement, these harmonised Just ahead of the summer holiday season, the emission limits will take effect progressively, from 1 European Commission presented the annual report on January 2005 to 1 January 2007. It is estimated that the the quality of Europe’s bathing waters. Overall, the yearly emissions of carbon monoxide, hydrocarbons, picture is good: bathing water quality in the EU nitrogen oxides and various other pollutants from continues to improve. The annual report is based on the recreational craft within the EU will be reduced by over requirements of the 1976 Bathing Water Directive and 50% once the limits are fully implemented. issued every year before the summer holiday season to Enterprise Commissioner Erkki Liikanen commented: allow citizens to check the quality of the bathing water “I am pleased that the Parliament and the Council in their favourite holiday destinations. In 2003, 98.6% of have supported our innovative proposal, which the EU coastal bathing waters and 92.3% of all fresh aims at combining environmental and industrial waters complied with the Directive. This confirms the policy objectives in an internal market directive. positive trends of recent years. Many Member States The adoption of this directive will contribute to are now very close to full compliance with the quality maintaining and enhancing the competitiveness of standards and the monitoring requirements under the the European recreational marine industries by Directive. However, one worrying aspect remains: in further removing possible technical barriers to some Member States, there is a tendency to ban trade, whilst at the same time ensuring that the bathing or declassify bathing sites when there are environment and human health and safety remain problems, rather than removing the source of pollution. adequately protected.” Commissioner for the Environment Margot

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Wallström commented: There is, however, one significant negative “Bathing water quality is still improving in the EU! development: The number of bathing sites where the This is good news for citizens in general and site was de-classified (put outside the scope of the especially for parents of young children, who want Directive) or where bathing was prohibited rose sharply to enjoy Europe’s seas and lakes. It is particularly during the last bathing season. The Commission welcome that most bathing sites do not just strongly disapproves of this approach. Some of these comply with the legal minimum standards under “forbidden” bathing waters remain banned for many the Directive, but that they also meet the stricter years, and thus Member States get away with bad recommended standards. But now we need to water quality. At the same time, not enough efforts are stop the practice of declassifying bathing sites as a made to bring these bathing waters back into good remedy for pollution problems. The right approach condition and to tackle the source of pollution. is to deal with the pollution, and not to cancel people’s bathing opportunities! I urge the Council Revision of the Bathing Water Quality Directive and the Parliament to adopt speedily the proposal Following an extensive period of consultation, the for the revised Directive, which the Commission Commission in October 2002 proposed a revision of the put on the table in 2002. It will not only provide an 1976 Bathing Water Directive. The revision even higher level of protection, but also involve (COM(2000)581) aims: citizens more in the management of bathing sites.” • to improve the level of protection so that the chances of medical problems as a result of Overview of the 2003 results swimming are further reduced; The Bathing Water Directive (76/160/EEC) from 1976 • to improve the application of the Directive so that sets “imperative” water quality standards that must be efforts are directed towards managing risks rather complied with, as well as higher “guide values” that than simply monitoring and reporting. This will enable Member States are encouraged to meet. These include good bathing waters to benefit from reduced a range of key parameters (including indicators of the monitoring requirements; presence of faecal bacteria and three physico-chemical • to simplify the Directive so as to focus more on the parameters). The Directive also details the requirements real threats to health, which are considered to be for how bathing water quality should be monitored and essentially bacteriological rather than chemical; reported. As a rule, sampling should be carried out • to ensure that the requirements of the Bathing Water every fortnight, plus one additional sample 14 days Directive are coherent with the obligations of the before the start of the locally defined bathing season. Water Framework Directive; The respect of these criteria is important for human • to make sure that new techniques for the health as bacterial contamination resulting from communication of information are fully exploited so inadequate treatment of waste water or animal wastes that citizens receive fast and reliable information; entering directly into the water can give rise to gastro- • to ensure citizens’ involvement in the management enteritis or even respiratory illnesses in persons bathing of bathing waters. in contaminated waters. Throughout the EU, there are 19,371 bathing waters covered by the Directive, out of After a first reading in Parliament, the proposal is still which 70% are coastal (sea) waters and 30% are fresh being discussed in the Council. waters. As the report covers the year 2003, data for the new member states is not yet included. Such data will Ireland: Commission pursues legal action be included from next year onwards. for breaches of environmental law in nine 245 In 2003, 96.8 % of all EU coastal waters complied cases with the “imperative” standards. This is a 1% rise The European Commission has decided to pursue compared to last year. The percentage of fresh waters infringement proceedings against Ireland in nine cases conforming to the imperative standards has also risen involving EU environment law. Several of those cases by 1 percentage point, to 92.3%. During the 2003 relate to insufficient protection of Ireland’s rich biodiversity. bathing season, 89% of coastal waters and 68% of But Ireland has also failed to deal adequately with freshwater sites were meeting the guide values unlawful, environmentally damaging waste operations, compared to 87% and 64%, respectively, the previous and to properly implement other EU laws aimed at year. Member States have also improved the monitoring providing Europe’s citizens with a healthy environment. In of their bathing waters. At less than 0.5% of bathing two cases, Ireland has already been condemned by the water sites is the monitoring regime below the standard European Court of Justice. Some of these concern the required by the Directive. installation of sporting facilities at the expense of wildlife.

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The Commission is now following up these municipality of Campo Tures, Natural Park Vedrette di judgments as Ireland has still not changed its legislation Ries-Aurina) and an equipped path (“via ferrata” and practices. Commenting on the decisions, between Vallelunga and Alpe Stevia, in the Environment Commissioner Margot Wallström said: municipality of Selva di Val Gardena, Natural Park “One important objective of EU environmental law Puez-Odle) both in the Dolomites in the Bolzano is to protect Europe’s biodiversity. Ireland’s nature Province of the Trentino Alto-Adige region. is stunningly beautiful. It is important to preserve this richness for future generations, as well as for 3. Construction of new skiing infrastructure which is the tourists that visit Ireland. Full implementation being built in view of the 2005 alpine skiing world of EU conservation legislation will ensure this. championship in the Stelvio National Park. This Ireland also has to continue to fight against illegal National Park founded in 1935 is one of the largest waste operations and clean up the damage they and most ancient natural parks in Italy and displays a have created to give its citizens the quality of life great range of Alpine biodiversity. they have the right to expect.” 4. Several potentially damaging activities have taken Failures to protect nature and wildlife: place in “Lago di Mezzola e Pian di Spagna” (North sporting facilities at the expense of wildlife of Lake Como). In particular, they include the building The Commission has also decided to refer Ireland to the of a film-set in a delicate reed-beds area, its use Court for another problem of nonconformity of Irish during birds’ breeding season and its destruction by legislation with the Habitats Directive. It is based on the a fire when it was no longer needed; and a tourist investigation of a complaint that use of rough-terrain infrastructure in “La Punta”, used in particular during motor vehicles known as quad-bikes was causing summer. All these developments cause severe erosion within Irish sites proposed for Natura 2000. disturbances to the habitat hosting 74 bird species, Many of these sites have fragile peat soils. The many of which are migratory. Commission found that Irish legislation does not provide for proper controls over potentially damaging Free movement of services: Commission recreational activities in Natura 2000 sites, such as jet inquires into Danish restrictions on sports 247 skis. As the necessary additional legislation has still not betting been sent to the Commission, the Commission has The European Commission has decided to send now decided to address the Court of Justice. Denmark an official request for information on its legislation, adopted on 26 March 2003, which prohibits Breaches of EU nature conservation law by the supply or advertisement of, and the facilitation of 246 construction of skiing infrastructure participation in, gambling services offered by providers Italy has failed to respect the Habitats Directive and the licensed in other Member States. Danish law restricts in Birds Directive in four cases. The Habitats Directive particular the provision of sports betting services. The protects a range of rare and endangered animals and Commission intends to verify the compatibility of the plants, as well as a selection of habitat types, by ban in question with the provisions of the EC Treaty on making them part of the EU’s network of protected the free movement of services and on the freedom of areas known as Natura 2000. Among other things, the establishment. The Commission’s request will take the Directive requires the assessment of potentially form of a letter of formal notice, the first step of an damaging plans and projects that may affect Natura infringement procedure under Article 226 of the EC 2000 sites before they are carried out. Similar to the Treaty. Denmark will be asked to respond within two Habitats Directive, the Wild Birds Directive creates a months. If the Commission were not satisfied with the comprehensive nature protection scheme, but focuses response, it could send a formal request (known as a on the EU’s wild bird species. Italy failed to assess the reasoned opinion) for the system to be changed and if potential impact of the following construction projects Denmark did not comply, the Commission could take within protected sites and the Commission will the case to the European Court of Justice. therefore send final written warnings to Italy. The prohibition introduced by the Danish Act on The four cases are: Certain Games, Lotteries and Bets (Lov om visse spil, 1. The development of an industrial zone in the area of lotterier og væddemål, Law no 204 of 26 March 2003) Manfredonia (Foggia) with an impact on the nature renders it illegal for any service provider, operating site “Valloni e steppe Pedegarganiche”. under a gambling licence of another Member State than Denmark, to advertise, facilitate participation in or 2. The construction of a forestry road (“Koferalm”, supply gaming services. The prohibition of advertising

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and the sale of advertising space to gambling providers football clubs for which players’ contracts are the applies to printed media, radio, television and biggest item of expenditure, may be able to submit information society services. The Danish law also accounts which underestimate their true costs in a prevents suppliers of the services concerned from given year, hide real losses and give a misleading providing them into Denmark from another Member picture to investors. State. The Commission is concerned that this could In technical terms, the “Salva-Calcio” Act allows contravene Article 49 of the EC Treaty on the free sports clubs to place in a special balance sheet item movement of services. under assets the capital losses arising from the The Danish legislation also makes it impossible for decreased value of the rights to exploit the performances EU based providers of sports betting services to of professional players, as determined on the basis of a establish a presence in Denmark for example by setting sworn expert valuation. This item is accounted for among up an office and to supply their services via that the assets in the balance sheet and amortised. The presence. In the Commission’s view, this could “Salva-Calcio” Act specifies that companies opting for contravene the principle of the freedom of the special rules introduced by the Act must proceed, for establishment set out in Article 43 of the EC Treaty. accounting and fiscal purposes, to amortise the balance The Commission is therefore concerned that, on the sheet item in ten yearly charges of equal amount, even if basis of the available information, the Danish legislation rights established by contracts with the players in question could give rise to restrictions on concerned last for, say, only two or three years. establishment and on the cross-border provision of The 4th (78/660/EEC) and 7th (83/349/EEC) Council services which are disproportionate to general interest Directives (Accounting Directives) on companies’ annual objectives recognised by the European Court of Justice and consolidated accounts require athletes’ contracts, (such as the protection of consumers or the where treated as intangible assets, to be written off maintenance of public order). over their useful economic life, which generally would The Court’s case law (see C-243/01, Gambelli) be the term of those contracts. The contract may not provides that national measures that may give rise to be written off over a longer period than the duration of restrictions must seek to protect general interest the contract itself. In addition, the Accounting Directives objectives such as the protection of consumers or the provide that value attributed to fixed assets must be maintenance of public order and that such restrictions adjusted downwards to their real value on the balance must, in any event, seek to limit gaming services in a sheet date if it is expected that the reduction in their consistent and systematic way. In particular, the Court’s value will be permanent. The Directives also set out the case law indicates that a Member State cannot invoke fundamental principle that financial statements should the need to restrict its citizens’ access to gambling if at show a true and fair view of the companies’ assets, the same time public authorities in that Member State liabilities, financial position and profit or loss. incite and encourage people to participate in lotteries, Therefore the Commission believes that the “Salva- games of chance and betting to the financial benefit of Calcio” Act breaches the Accounting Directives by the public purse. allowing a number of athletes’ contracts, to be written off over a longer period than their useful economic life Commission asks Italy to change its rules and by allowing sports clubs not to make value on accounting by professional sports clubs adjustments in respect of their contractual rights over 248 (‘Salva calcio’) professional athletes, even if those athletes have ceased The European Commission has decided to ask Italy to perform at the level expected from them, for example formally to change its “Salva-Calcio” law on financial through injury. Financial statements presented in such a reporting by professional sports clubs, including Serie A manner cannot show a true and fair view and so depart football clubs. The Commission believes that the from the “prudence principle” of the 4th Directive. legislation breaches EU accounting laws in that the Though the Italian authorities have underlined that balance sheets of a number of sport clubs fail to the “Salva-Calcio” Act was conceived as a “one off” provide a true and fair view. The Commission’s request measure, the Commission notes that it continues to takes the form of a “reasoned opinion”, the second affect the accounts of the sports clubs in question and stage of EC Treaty infringement procedures (Article that no measure has up to now been taken by the 226). Unless a satisfactory response is received within Italian authorities to put an end to these effects. In two months, the Commission may refer the case to the these circumstances, the Act is still in breach of the EU Court of Justice. Accounting Directives. The effect of the February 2003 “Salva-Calcio” Act is that some professional sports clubs, especially major

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9. EU Law

Freedom to provide services and freedom of therefore has the effect of discouraging nationals of establishment: infringement procedures other Member States and limiting their scope for stable 249 against Spain, Italy and France and continuous integration into economic life in Italy. The European Commission has decided to bring Spain before the Court of Justice of the European Communities in connection with its legislation on the transfer of insurance portfolios between operators, which the Commission regards as discriminatory against non-Spanish insurers. The Commission has also formally asked Italy to amend its legislation on “labour consultants” (‘consulenti del lavoro’) and extrajudicial debt collection. Italy has also been asked to bring the rules of Italy’s central gliding club into line with the EC Treaty by deleting the provisions that constitute discrimination on the basis of nationality and an obstacle to the freedom of cross-border establishment. In addition, the Commission has asked France to apply its arrangements for aerial photography without discrimination. Under the system as it stands, only non- French nationals are required to obtain authorisation. These requests are in the form of reasoned opinions – the second stage in the infringement procedure provided for in Article 226 of the EC Treaty. Should a Member State that has received a reasoned opinion fail to give a satisfactory response within the deadline (usually two months), the Commission may refer the matter to the European Court of Justice. The Commission has also terminated two infringement procedures against Belgium (satellite dishes) and Portugal (laboratories), which have been satisfactorily resolved. Services account for around 70% of GDP in the European Union. If national regulations impede the free movement of services, businesses, and particularly SMEs, are deprived of outlets, and their potential clients – be they private individuals or other businesses – are deprived of choice and, in many cases, better value for money. The competitiveness of the European economy is therefore compromised.

Italy – Aero Club centrale di volo a vela The Commission has also decided to send the Italian authorities a reasoned opinion on the grounds that the rules of the Aero Club centrale di volo a vela (central gliding club) are incompatible with the EC Treaty. Article 17 of these rules stipulates that membership of the elective bodies is restricted to Italian nationals. This is incompatible with Article 12 of the Treaty, which sets out the general principle of prohibiting any discrimination on grounds of nationality, and with the freedom of cross-border establishment (Article 43), in that it prevents any non-Italian Community national from occupying elected posts and hence from performing the functions associated with these posts as part of the activities of the club. Exclusion on grounds of nationality

83 Volume 12 Issue 2 Sport and the Law Journal 10. Company Law

Bankruptcy (actual or threatened) of Other issues sporting clubs & bodies [None]

Italian clubs face bankruptcy The chill financial winds which have been swirling round the corridors of Europe’s professional football clubs seem to be seeping into every corner of the game, even in those areas which were hitherto regarded as virtual goldmines. Thus a number of clubs in that Shangri-La of professional football, Italy, have recently been experiencing financial problems to the point of facing the real possibility of extinction. Thus the Southern club of Napoli was declared bankrupt in early August 2004. The debt-ridden former league champions, who were refused a licence to play in the second division (Serie B) because of their debts, which are estimated at round £48 million, were issued 250 with the order by a bankruptcy court . At the time of writing, it was not clear exactly what future – if any – faced the club. The case of Parma, however, is untypical, in that its dire financial plight has been caused by factors which have nothing to do with what has happened in the club 251 boardroom. It will be recalled from the previous issue that top club Parma threatened to go under because of the Parmalat global food company having been declared bankrupt. Towards the end of April 2004, a court declared the club insolvent – the 28th unit of the scandal-struck 252 company to assume bankruptcy-protection status . The club is £212 million in debt, and will face bankruptcy unless these liabilities can be managed. Another club whose financial affairs have come under the scrutiny of the authorities as a result of a wider scandal is Lazio Rome. In mid-March 2004, the club, which was being investigated as part of the investigation into the collapse of the Italian food company Cirio, announced that its net losses had widened to £46 million during the July-December 2003 period. The club was also affected by a slump in capital gains made on player sales. The club was preparing to issue new shares, in the second recapitalisation to occur in less 253 than a year, in order to cover the shortfall .

Greek side face total collapse In early July it was learned that Greek club AEK Athens were on the verge of financial collapse and the possible relegation to amateur status, after a court ruled that the Athens club’s state debts were incapable of reduction. The court’s decision raised a major obstacle in the path of the attempts made by international striker Demis 254 Nikolaides to purchase the financially stricken club .

84 Sport and the Law Journal Volume 12 Issue 2 11. Procedural Law and Evidence

[None] 12. International Private Law

[None] 13. Fiscal Law

Canadian baseball team’s claim for tax thus, its permanent establishment, was at a place 255 exemption awarded assigned to it in that venue. In the case under review, the applicants were a professional baseball team whose home base was in Ontario, Canada. They played approximately half their regular season games at non-Ontario venues. In addition, all or some of the teams trained and played pre-season and post-season matches in and outside Ontario. At the non-Ontario venues, the teams had exclusive use of dressing, coaching and training rooms in the host team’s facilities. They also brought their own equipment to the non-Ontario venues. The Employer Health Tax Act 1990 required Ontario employers to pay a health tax assessed on the basis of an employer’s total Ontario remuneration, but exempted remuneration paid to employees who report to the employee’s permanent establishments outside Ontario from the base. Section 1(2) of the Act defines the term “permanent establishment” as any fixed place of business. Paragraph (e) thereof provided that an employer is deemed to have a permanent establishment in the place where the employer uses substantial machinery or equipment. The club made an application for a declaration that each of the venues at which they trained and played, including non-Ontario venues, constitutes a permanent establishment. Accordingly, remuneration paid to their employees for work in non-Ontario venues would be exempt from the base. The Ontario Superior Court of Justice awarded the application. It conceded that the applicants’ argument based on s. 1(2)(e) failed, since they did not use substantial equipment at the non-Ontario venues. However, their argument based on the main definition succeeded. Each team carried on business together, and in conjunction, with all other teams in their respective leagues, since they depended on each other to perform and produce income. Accordingly, even where a team played in an away venue, it was carrying on business in that venue, and that was the case even though it might not share in the gate receipts. Furthermore, whenever it played in an away venue, its fixed place of business and,

85 Volume 12 Issue 2 Sport and the Law Journal 14. Human Rights/Civil Liberties

Racism in sport day, was to show that the life of a garment worker is 260 [None] one long competition to work faster and faster . In mid-July 2004, it was learned that human rights organisation Amnesty International had criticised a Human rights issues ruling by the organisers of the Athens Games that spectators could be ejected from the stadiums if they Human rights issues at Athens 2004 were found to be wearing clothing bearing the logos of 261 The Athens Olympics may have been a tremendous companies which rival the official sponsors . success on the field, yet did not fail to attract plenty of For more details, see under the heading “Intellectual controversy off it, as has already been indicated Property Law”, above, p.74. elsewhere in this column. Not only have their been corruption and doping scandals, but human rights issues also served to cloud the Olympian horizon for the Gender issues two-week tournament. With a week to go before the opening ceremony, the Transsexual fears follow new Olympic ruling 262 Greek government decided to refuse admission to It will be recalled from a previous issue of this Journal Belarus team chief Yuri Sivavkov. Thus was in line with that the International Olympic Committee (IOC) recently a call to that effect made by the European Union (EU), ruled that transsexuals were to be allowed to compete which had called on all member states to ban Mr. at the Athens Games. Athletes who are legally Sivavkov because of various instances of alleged human recognised in their new gender were allowed to rights abuses whilst the latter was Minister of the compete. This decision has drawn criticism from a Interior in Belarus. This put the Greek government at surprising source – more particularly Renée Richards, odds with the International Olympic Committee (IOC), the tennis player who made the headlines over 25 years since one condition for hosting the Games is that ago by changing her gender and then being allowed to Olympic credentials automatically count as a visa to play female professional tennis. She warned that enter the host country. This elicited an angry reaction unscrupulous competitors could use the new ruling to 256 from IOC President Jacques Rogge . change from men to women in order to increase their During that same week, hundreds of factory workers chances of success. She commented: from eight Asian countries gather in Bangkok, the Thai “It’s ironic that everyone has tried so hard to keep capital, for a one-day “Workers’ Olympics” in order to a level playing field – from corked bats to doping – raise awareness about labour conditions in sportswear but now the IOC has come up with a decision that factories across the region. This event, which was held defies fairness in a similar vein. Sex-reassignment at a sports stadium in a slum area of the city, was part surgery is based on putting materials into your 263 of the year-long Fair Olympics campaign by an alliance body” of international labour unions and non-governmental organisations to ensure companies who make goods Dr. Richards, who was born Richard Raskind, was an sanctioned by the International Olympic Committee amateur tennis player as a man, but following surgery 257 treat their workers properly . Concerns on this score she was barred from women’s events until a court 258 have been featured in this Journal in previous issues . decision opened the way for her to compete in 1977. Highlights of the event included a torch relay, the She reached a sufficiently high standard to reach the hitting of a large “capitalism” jar to release balloons last eight of the US Open the following year. signifying workers’ demands, as well as sports and co- It is a fact that hormone treatment applied to operative shops. Competitors came from the transgender athletes may diminish certain differences. Philippines, Indonesia India, Sri Lanka, Pakistan, However, the skeletal advantages – and possibly also Bangladesh, Cambodia and Thailand, where much of the capacity of the lungs and heart – are left 259 the world’s sportswear is produced . Large unchanged. This could give transsexuals a considerable manufacturers such as Nike, Adidas and Reebok claim advantage. There have in the past been cases where it that they do everything in their power to ensure that has been suspected that males are competing unfairly labour conditions in factories used by them meet as females. One of the best-known examples was that international standards. However, Oxfam spokesman of the Press sisters (Tamara and Irina) from the Soviet Tim Conors, who attended these “games”, alleged that Union, who shared five Olympic titles in the shot and factories operating satisfactory conditions were the hurdles respectively, but disappeared when gender 264 exception. He also said the object of this event, as well tests were introduced following the 1964 Games . as a similar event to be held in Athens the following The Olympic rule change may very well have

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3. Contracts

repercussions beyond Olympic sport. Thus it was because of its policies in this regard. Whilst even the learned in late June 2004 that Mianne Bagger, the MCC started to allow women members to its ranks, the transsexual golfer who competed at the Australian Queen’s Park club, which owns the Queen’s Park oval Women’s Open earlier this year, wishes to play on the on which international fixtures are played, still has a 269 Ladies’ European Tour next summer, and has written to policy whereby no women can become members . Ian Randell, its Chief Executive, requesting that the rule This creates the potential for preventing Trinidad stating that players must be female by birth should be from hosting a game in the next World Cup, due to be changed. Here again, some players on the tour have played in the West Indies in 2007, in spite of the fact expressed concern that anyone born a man might have that, with a 30,000 ground capacity, the Queen’s Park 265 a powerful advantage . Oval is the most obvious candidate for hosting at least one of the fixtures. Regulations governing this event Equal rights for women gaining ground on expressly state that no venue may practise gender the golf course discrimination. Queen’s Park has no express rule It is widely felt that, with the possible exception of banning women, but appears to discriminate in practice. Sumo wrestling, golf is one of the more sexist popular When Vaneisa Bahksh, a local freelance journalist, sports in existence. The disquiet experiences in many applied to join the club in 1997, her application was quarters at this fact has been aired on various occasions rejected in spite of her long-standing interest in cricket. in previous issues of this Journal, notably with regard to She applied to join a second time four years ago, but the campaign waged to end the bar against women at has yet to receive a definite response from the club in 270 the Augusta National Golf Club, which hosts the spite of her regular inquiries . 266 renowned annual Masters tournament . However, there are signs that the battle for equal rights on the golf links is gradually being won. In early Other issues April 2004, it was learned that the Augusta club could soon have women competing in a men’s major Palio horse death gives rise to concern championship in the future. Even Hootie Johnson, the The Palio is a centuries-old horse race organised twice chairman of a club which has no women members, per year by the citizenry of Siena, Italy. Increasing conceded that, if Michelle Wie, the 14-year-old bright concern has of late been displayed by animal rights prospect from Hawaii, could qualify for the event, the activists at the manner in which the horses are treated club would be pleased to welcome her. In spite of this, during this race. This concern turned to fury in mid- Mr. Johnson has remained obdurate as regards the August when one of the horses in question was killed. 267 issue of allowing the club to have women members . Ambroso, an eight-year-old, was killed when he struck a A blow for gender equality was also struck recently street sign and died soon afterwards. Italy’s Anti- in Ireland, where an exclusive Dublin golf club lost its Vivisection League, which has campaigned for some licence to sell alcohol for refusing to accept female time now to have the race outlawed, indicated its members. This represented the first occasion on which intention to lodge a complaint of cruelty against the race 271 penalties have been applied the Equal Status Act. The organisers . Dublin District Court ruled in February 2004 that the This is not the first occasion on which horses have exclusive Portmarnock club was in breach of this perished during the race. In 2003, two horses were 272 legislation by banning female members. The club have killed, and 46 have died in accidents since 1970 . appealed to the Irish High Court, claiming that the 268 legislation in question infringes the Irish constitution . Thai authorities investigate kickboxing ape The outcome of this appeal was not known at the time deaths of writing. In early August 2004, it was learned that police in Thailand had commenced an investigation into reports Trinidad could pay heavy price for continued that over 40 orang-utans may have died in Safari World, 273 discrimination near Bangkok . The world of cricket has come a long way since the role For more details, see under the heading “criminal of women in the game was considered to begin and law” above, p.60. end with making the players’ tea. The game’s authorities have taken steps to outlaw gender discrimination in the game – so much so that a member of the International Cricket Council (ICC) might find itself barred from organising the next World Cup

87 Volume 12 Issue 2 Sport and the Law Journal 15. Drugs legislation and related issues

General, scientific and technological using designer drugs as yet unknown to testers. Terry developments Madden, the USADA Chief Executive, announced that his office had received information and evidence at Athens Olympics may have witnessed new least three times per month alleging the use of banned 277 human growth hormone test... drugs by some of the US’s top athletes . With only a few weeks to go before the opening This news is likely to have produced a disheartening ceremony of the Athens Olympics, anti-doping officials effect on the anti-doping authorities, not only in the US, indicated that some competitors at the Games may be but also world-wide. It was only the previous summer tested for human growth hormone (hGH) for the first that USADA was able to develop a new test for the time. However, even at that critical time officials at the designer steroid tetrahydrogestrinone (THG) after a World Anti-Doping Agency (WADA) refused to confirm syringe containing a sample was sent to Dr. Don Caitlin whether athletes would actually be screened for this at the University of California by an unnamed coach. It substance, which has the same effect as steroids, on emerged that the coach in question was Trevor Graham, the basis that it is better to keep those taking drugs who had previously worked with athlete Marion Jones guessing. Nevertheless, in its annual report, WADA and the world record holder over 100 metres, Tim confirmed that a test aimed at detecting excess levels Montgomery, both of whom are linked to the BALCO of hGH has been finalised, whilst research on blood scandal, which has already been extensively been 278 doping tests is well advanced. It states: covered in this organ, both in previous issues and the “The research funded by the agency to date has present edition (below, p.90). Dr. Catlin is convinced already yielded significant results. Research groups that just because USADA has developed a test for THG, have developed methods to detect human growth this does not mean other scientists are not attempting 279 hormone when used to enhance athletic to develop new drugs . In addition, there had been performance. These groups worked throughout rumours on the European circuit all summer that top 2003 to finalise a test that will detect hGH external athletes had been using new drugs for which they 280 (sic) to what is naturally produced by the body. In believed that they could not be tested . addition, significant progress was made in research on blood doping, including that of haemoglobin- Genetically modified bodies: the new based oxygen carriers and blood transfusion, performance enhancer? whereby an athlete receives compatible blood from As if the developments mentioned in the previous two a donor just prior to competition. Work is well sections, and in previous editions of this column, were under way to finalise detection methods for these not enough to cause alarm amongst those seeking to types of blood doping, with implementation maintain reasonable standards of integrity in sport at all 274 foreseen in the near future.” levels, news has recently broken of a new trend which may make the other pale in comparison. In early July This report adds weight to the view expressed by 2004, it was learned that several athletes of Professor Peter Sonksen, the scientist who led the international standard had approached leading US development of the test, that the time is ripe for scientists, requesting them to modify their bodies 275 introducing it at the Olympics . Dick Pound, the genetically in order to transform them into unbeatable President of world governing body WADA, has indicated sporting performers. This revelation has come as a that tests for hGH could take two months to be analysed. shock to sporting organisations the world over, Samples are frozen and examined at a recognised indicating as it does that sporting performers are laboratory. HGH became a banned substance in 1989, already attempting to use ground-breaking genetics after one athlete to have admitted to having taken the techniques – aimed at saving patients’ lives by altering substance was Ben Johnson, the Canadian sprinter who the composition of their DNA – in order to boost 281 forfeited his gold medal at the 1988 Olympics in Seoul physique and stamina . 276 after a positive test for anabolic steroids . Olympic authorities have already indicated their fear that genetically-enhanced sprinters, swimmers and ... as well as new designer tests unknown other contestants will become commonplace. The to testers controversy has been heightened by the admission Also as the start of the Athens Games became made by Len Sweeney, a leading gene therapist, that increasingly imminent, the US Anti-Doping Agency several athletes had already asked him to use the (USADA) expressed the fear that competitors would be technique in order to give them grater power and

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speed. Professor Sweeney, an expert in physiology at people raised their eyebrows at certain performances, the Pennsylvania University School of Medicine, has this was the price to pay for not having a robust anti- 284 refused to name them, but admitted that some coaches doping programme . had also offered their runners as guinea pigs for his experiments, even though his research up to that point IOC to blame for delays in effective drugs had only involved mice. One coach even offered his testing? Expert speaks out entire high school football team. Officially and ostensibly, the International Olympic The problem has been highlighted by Prof. Sweeney Committee (IOC) has always been to the forefront of in an academic article which recently appeared in an the fight against doping. However, not every insider in issue of the Scientific American. He writes: this area is impressed by these continuous “This kind of gene therapy could transform the protestations – least of all Prof. Peter Sonksen, who has lives of the elderly and people with muscular performed ground-breaking work in finding methods of dystrophy. Unfortunately, it is also a dream come catching out athletes using the human growth hormone true for athletes bent on doping. The chemicals are (hGH) referred to above. He recently stated his opinion indistinguishable from their natural counterparts that the IOC could have introduced a test for this drug and are only generated locally in the muscle tissue. four years ago, but instead allowed athletes to continue 285 Nothing enters the bloodstream, so officials will using it without fear of detection . 282 have nothing to detect in a blood or urine test” Professor Sonksen, who carried out four years of research into the drug before the Sydney Olympics of Sweeney’s work has involved engineering a harmless 2000, claimed that there was nothing new in the recent virus in such a way as to carry a gene known as insulin- science on the subject – it was merely a question of like growth factor 1 (IGF-1), which is vital for muscle “the dotting of a few i’s (sic) and crossing a few t’s growth and repair. Injected into healthy mice, the virus (sic)”. Professor Sonksen headed a research project carried the gene into the animals’ cells, where it was entitled GH2000, and alleges that his team’s findings, incorporated in their DNA. The muscles of the mice issued six months before the 2000 Games, were as grew in size and strength by up to 30 per cent. In one advanced as any subsequent work on growth particular experiment, Sweeney’s team injected IGF-1 hormones. He used to be a member of the IOC anti- into the leg of a rat which had to climb ladders in order doping commission, but resigned. He pronounces to reach its food. At the conclusion of the experiment, himself very much let down by the IOC, who gave a $1 the gene-affected leg was nearly twice as powerful as million grant to him and his team to finish the work four the untreated one. It also retained its strength for much years ago, then took it away for what he alleges are longer after the end of the experiment. Such political reasons. This was caused by a disagreement experiments are at the cutting edge of genetics. The between Prince Alexandre de Merode, the then head of temptations for ambitious athletes are obvious. the IOC’s anti-doping commission, and Juan-Antonio Samaranch, the then IOC President. Prof. Sonksen explained: Doping issues and measures – “Prince de Merode did a lot of good things during international bodies his time in office, but he also let himself down badly on a number of occasions. It was the Prince WADA chief blames governing bodies for who got the funding for the research work in the increase in drug abuse first place, but if it wasn’t for him taking back that Although the situation might have turned out worse, the grant, we could have had a growth hormone test Athens Olympics were not free from drugs scandals. in place four years ago” However, both Olympic organisers and anti-doping officials expressed their confidence that the detection Prof. Sonksen also criticised the British anti-doping body of these case would produce positive results in the long UK Sport for compelling the head of its ethics department, term, as they indicated that the “clean” athletes were Michelle Verroken, to resign, because she had called for 286 being protected. However, Dick Pound, the head of the an independent anti-doping agency in Britain . world governing body in doping control, WADA, also indicated that matters should never have been allowed 283 to reach this stage . Doping issues and measures - For this, Mr. Pound put the blame on the various individual countries sports’ governing bodies, stating that they had allowed [None] the matter to “get out of hand”. He added that, if

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Doping issues – individual sports for a medal in the women’s 100 metre event. The national coach, Odysseas Papatollis, indignantly refuted Athletics these suspicions, and pointed to the generous funding by the Greek government, thought to be worth $100,000 for Greek athletes’ missed doping test sours each athlete, which was instrumental in keeping the 289 opening of Athens Olympics athletes away from the lucrative Grand Prix circuit . During the run-up to the Olympic Games of 2004, the However, the Greek cause was not assisted by an host country faced many organisational difficulties, alleged connection between this affair and the Balco which are outlined elsewhere in this journal. These were scandal currently threatening to destabilise US athletics. eventually overcome, and the Games started and The evidence against Balco executive Victor Conte and proceeded according to schedule. However, even before Remi Korchemny, who acted as coach to some of the the Games got under way there was an undercurrent of main protagonists in this scandal, includes emails which concern about the possibility that some of the host suggest that élite Greek track and field stars were on nation’s athletes might themselves sully the latter’s Balco’s roster. In one particular email, which has names reputation by failing to meet doping requirements. deleted by US federal agents, Conte had written: It was even as the opening ceremony progressed “We might also want to somehow get this that the news gained currency that Kostas Kenteris and information to the coach for the Greek athletes Katerina Thanou, the Greeks’ brightest hopes for medal- [name deleted] and [name deleted] so that nobody 290 winning performances in the athletics events, had both tests positive” failed to present themselves for a random drugs test in Athens. More will be said on this subject later. However, In the meantime, it emerged that the reason given even before this particular bombshell hit the Games, by Kederis and Thanou for missing the drugs test was there had been concerns about the host nation’s probity that they had been involved in a motorcycle accident, in this regard. Indeed, with three days to go before the which had caused them minor injuries and to be opening ceremony, the news broke that two of the detained in hospital. Both had been summoned to an Greek baseball players had tested positive. Andre Brack IOC disciplinary commission, but were allowed to defer and Derek Nicholson, both originally US citizens, had the hearing until medical certificates could be received. failed a test for the steroid Stanozolol (Brack) and the In the meantime, the Greek Olympic Committee diuretic hydrochloro-thiazide (Nicholson). Both had been refused to bow to pressure to expel their star athletes 287 caught during out-of-competition tests . from the Games, but suspended the athletes pending 291 It was in the context of this affair that it came to light the outcome of the disciplinary hearing . In the that the World Anti-Doping Agency, the world governing meantime, some more allegations were being made body in drugs testing, was seeking to establish the about the two athletes’ previous behaviour in this whereabouts of all the competitors who would represent regard. It appeared that, on two occasions in Chicago Greece at the Olympics. This focused interest once again (10 and 11 August) they had failed to meet testers, and on the mysterious residential habits of the two Greek that they were also absent without notice from the 292 athletes referred to above. Ever since Kenteris won a Olympic Village on 13 August . gold medal in the 200 metres event at the Sydney Because the two athletes were still recovering in Olympics in 2000, his identity and whereabouts have hospital at the time when the hearing should have proved elusive. Even his name was the subject-matter of taken place, they sent representatives instead, and uncertainty, since at a certain point he seems to have were granted a second and final 48-hour period in changed it from Kenteris to Kederis. His personality was which to recover. In the meantime, it was learned that also surrounded by a controversy centred around a Greek prosecutors were considering criminal charges succession of circumstances which seemed to against the two sprinters, over claims that they faked 293 undermine the Greek sporting authorities’ insistence that the motorcycle incident in question . Mr. Kederis, in none of their athletes were using questionable methods the meantime, pronounced himself totally innocent of 288 294 in their preparation for the Games . any charges that could be brought against him . One of the aspects of Mr. Kederis’s career which had In the event, the two athletes “jumped before they already been the subject-matter of speculation and were pushed”, and forfeited their places in the Games suspicion was the athlete’s apparent unwillingness to “in the national interest”. This made them liable for compete outside his native land. Cynics suggested that possible two-year bans for evading drugs tests, and the the main reason for this was his unwillingness to face IOC also recommended that action be taken against the drug testers. This is a suspicion which has also been Christos Tzekos, the athletes’ coach, as well as any raised against Ekaterini Thanou, the country’s best hope other persons or organisations who may have

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295 contributed towards this alleged infringement . Jones’s lawyers made the documents public in an Inevitably, the press started to take a greater interest attempt to show the weakness of any effort to link their 306 in the background to this case, as a result of which client to the consumption of prohibited substances . more facts began to emerge. It appeared that the In mid-June, Ms Jones called a press conference to premises owned by coach Tzekos had been raided by demand that a public inquiry be organised in order to 307 drugs squad officers, who had discovered quantities of clear her name . The clouds of suspicion hanging over supplements containing the banned substance her refused to lift, as the authorities stepped up their ephedrine as well as “advanced anabolic steroids”. The investigation into her links with the laboratory at the raid had been effected as part of a Greek criminal centre of the US drugs scandal. She later withdrew investigation into the question of whether Mr. Tzekos from the 100 and 200 metre events at the US Olympic had been distributing controlled substances without a trials. Her decision meant that she would not represent 308 licence through his nutritional supplements business. the US at the Olympic Games in Athens . However, Reuters news agency claimed that the drugs squad raid this was not the end of the road for Ms. Jones as far as had discovered 1,400 boxes of nutritional supplements, her involvement in the drugs scandal was concerned. many of which contained performance-enhancing In late July 2004, lawyers acting for her rebutted 296 steroids . Doubts were also cast on the motorcycle claims by her former husband that she had used a incident which was alleged to have caused the missed number of illegal substances during the 2000 Olympics drugs test, when Greek police arrested a man who had in Sydney. The claims of the former husband in given a witness statement about the incident. Ever question, C J Hunter, himself a top US athlete became since the accident had been reported on 12 August, public knowledge when the San Francisco Chronicle hours after drug inspectors were seeking the athletes in reported that it had obtained investigators’ memos the Olympic village and failed to find them, doubts had containing the allegations by Mr. Hunter, which also been expressed as to whether the incident actually took stated that he had sometimes personally injected his 297 place . Prosecutors also seized hospital records of the former wife with banned performance-enhancing 298 309 310 sprinters . Days later, Mr. Kederis appeared in court as drugs . Her lawyers rebutted any such claims . a witness. He stated that he would reveal all at the end 299 of the judicial process . Cathal Lombard tests positive for EPO The International Association of Athletics Federations One of the major shocks to reach the world of athletics (IAAF), following a long discussion and after during the run-up to the Olympic Games was the news consultation with its lawyers, decided merely to start an that Cathal Lombard, the record holder for the 10,000 311 investigation. If their inquiry found the athletes had a metres event, had tested positive for the EPO drug . case to answer, they would ask the Greek athletic Unusually, instead of formulating a defence, Mr. federation to hold an investigation, which could result in Lombard, through his lawyer, confessed to having taken 300 a two-year ban . the drug in order to have an equal chance with the 312 other athletes . He said that, accordingly, he would not 313 Jones linked to Balco scandal be contesting the positive finding . 301 The reader will recall from the previous issue that several top athletes had been involved in the scandal Other cases involving the Bay Area Laboratory Co-operative (Balco), Irina Korzhanenko. The Olympic women’s shot put which was alleged to have supplied the THG drug. As champion tested positive for an unidentified drug during the scandal deepened, it appeared that Marion Jones, the second week of the Athens Olympics314. She was the Olympic medal-winning sprinter, was involved in this thus stripped of the gold medal she had won in this 315 affair. Suspicions in this regard deepened when it event . emerged that Marion Jones’s bank account showed that 302 $7,350 had been paid to the laboratory’s founder . She Vita Pavlysh. The Ukrainian shot putter was stripped of was also forced to defend her reputation after the US her world indoor title and banned for life after testing Senate agreed to release US drugs officials’ information positive for steroids for the second time. She failed a concerning athletes alleged to have used banned test during the world indoor championships in Budapest 303 316 performance-enhancing drugs . The powerful US in March 2004 . Senate Commerce Committee had begun to investigate 304 the matter and subpoenaed the trial documents . US Robert Fazekas. With half an hour to go before the anti-doping officials later presented Ms. Jones with medal ceremony for the men’s discus event at the copies of an annotated ledger and calendar which they Athens Olympics, the IOC stripped Robert Fazekas, the 305 believed could be a schedule of her drugs use . Ms. Hungarian who the an Olympic record of 70.93 metres,

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of his gold medal. The athlete had refused to provide doping offences. His ban on competing was later 317 326 sufficient urine for a doping test . upheld by a French court . Mr. Millar was later banned 327 for two years by the British Cycling Federation . Adrian Annus. The Hungarian hammer throw champion was stripped of his gold medal for having failed to take Spanish cycling in turmoil over Manzano 318 a follow-up drug test at the 2004 Olympics . revelations Cycling as a sport has had, over the years, to face some Mihaela Melinte, Claudia Iovan and Ana Mirela hard truths about the doping practices which at least Termure. Just before the Olympics began, the some top performers have engaged in. Hitherto, International Olympic Committee upheld a decision by however, Spanish cycling has been relatively free from the Romanian Olympic Committee to exclude these such accusations. This may be about to change, if the athletes from their national Olympic team because of revelations made by a top professional rider in mid- 319 previous doping offences . March are proved to be true. Jesus Manzano is a cyclist who used to ride for the Cycling Kelme team, and he recently chose to reveal a number of alleged illegal medical practices within his team on the The Cofidis scandal occasion of a recent television programme. He claimed In early April 2004, the news broke that two French to have had personal experience of such practices during cyclists in the Cofidis team, which is led by British rider the Tour of Portugal and the Tour de France, and that he David Miller, were put under formal investigation on had been kicked off a train in Valencia because he “was 328 drugs charges. The former Tour de France stage winner half-dead” (presumably from drug use) . More and yellow jersey holder Cedric Vasseur and Mederic particularly he claimed that, at the end of 2003, two half- Clain had been accused of breaching French anti-doping litre sachets of his blood were removed in a clinic in 320 laws . As a result of this investigation, the Cofidis Valencia and retained for the 2004 Tour. The system team decided to suspend all its riders from racing for whereby blood is removed and re-injected prior to a the immediate future pending further developments in major race enables cyclists to raise their red-cell count the police inquiry into alleged drug taking and without using the EPO hormone. He claimed that his 321 distribution within the team . health had been endangered by a failed second 329 Matters took on a dramatic turn several days later transfusion, to prepare him for the Tour of Portugal . when the former Cofidis cyclist Philippe Gaumont made In a second interview, the Spanish rider went on to a series of serious allegations against the team. Among list a large number of banned substances, ranging from them, he accused the team doctor, Jean-Jacques human growth hormone to animal growth hormone, Menuet, of having given cortisone and human growth corticoids and testosterone, complete with prices and hormone injections to riders. Gaumont also accused methods used in their application, all of which he David Miller, a former world champion, of doping claimed had been used at some point in the course of 322 himself and helping to supply others . his four-year career. He also denounced what he Mr. Gaumont also alleged that advances in drugs described as a deliberate policy on the part of world testing were meaningless because cyclists and their governing body UCI to minimise the number of riders 330 trainers had devised methods which were guaranteed to providing anomalies in their health checks . evade the various tests. He confirmed that, among top As a result of these revelations, his former Kelme cyclists, blood transfusions aimed at maintaining the red- team were banned from the 2004 Tour de France by the 331 cell count had taken over from the use of the red-cell latter’s director, Jean-Marie Leblanc . All this did not, blood booster EPO. Mr. Gaumont claimed that EPO was naturally, endear Mr. Manzano to his former team- only used when the cyclist knew he would not be tested mates, and he claimed that he had received several 332 – a test introduced in 2000 means EPO is capable of death threats . 323 being detected within three days of consumption . As a result of the police investigation, Mr. Miller was Armstrong doping rumours refuse to die down detained by plain-clothes police officers two months By any standards, Texan rider Lance Armstrong is an later, and his flat was searched. Police sources revealed outstanding athlete. Having won the Tour de France five that Mr. Miller was being questioned as a witness into times after having won a battle with cancer must stand 324 the Cofidis investigation . He was later ejected from out as one of the more remarkable feats of sporting the Tour de France, which was about to take place as endeavour ever recorded. Yet his performances have 325 the arrest occurred . Cedric Vasseur was also dropped sometimes come under suspicion, much to the US from the Tour by his team after being charged with rider’s annoyance – to the point where he has resorted

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to the courts in order to deny these rumours. However, where the riders were having a rest day, medical files his in this regard attempts have not invariably been were removed. Colonel Stefano Ortolani, of the successful. paramilitary carabinieri anti-doping squad, said that 15 In late June, on the eve of the sport’s showpiece professional cyclists were among the 138 people who 340 event, a court in Paris dismissed Mr. Armstrong’s had come under investigation . request that a book detailing suggestions of doping The outcome of this inquiry was not known at the should include a denial by him. Judge Catherine Bezio time of writing. rejected his request for an emergency order to this effect after a hearing with Mr. Armstrong’s lawyers and Tennis those representing the publishers of the book. The ruling stated that the accusation contained in the book ATP blamed for players avoiding drugs bans did not necessarily constitute defamation, because of a The taking of unlawful substances has reached the French law which exempts certain allegations made in majority of high-performance sports. And even tennis 333 good faith or which later turn out to be true . has had its controversies in this regard, of which the The book, by a British and French journalist, quoted Greg Rusedski case, adumbrated in the previous issue, 341 Emma O’Reilly, a former member of Mr. Armstrong’s was the most notorious example . This case focused team, as saying that the cyclist requested her to attention on the sport and the extent to which its dispose of used syringes and to lend him make-up in practitioners had become embroiled in this seamy 334 order to conceal needle marks on his arms . Mr. aspect of sport. Armstrong commented that he would bring separate More particularly the role of the Association of Tennis 335 libel actions in Britain and France . Professionals (ATP) has come under scrutiny here. This body has in the past strenuously maintained that the Cocaine overdose officially blamed sport was virtually drug-free with only very few for Pantani death exceptions. However, in mid-July it was forced to 336 It will be recalled from the previous issue that the concede that tests showing low levels of the anabolic death of Italian top cyclist Marco Pantani had attracted steroid nandrolone were continuing to surface, with speculation that drugs could have been at least a three new cases emerging since March that year. The contributory factor to his death. In fact, it was later world governing body in drug-testing, WADA, strongly learned that the coroner’s report into Mr. Pantani’s criticised the ATP for having exonerated on clearly death had reached the conclusion that the 1998 Tour de unsuitable grounds seven players who tested positive 342 France winner died as a result of an overdose of between August 2002 and may the following year . 337 cocaine . Later, police in Rimini arrested three men Bohdan Ulihrach of the Czech republic was initially and a woman suspected of supplying Pantani with the banned for two years after failing a drugs test for drugs in question. Police in the Italian resort had nandrolone, but was cleared after the ATP stated that it conducted an investigation centred on local drug could not be sure whether its own trainers had not 338 dealers following Pantani’s death . distributed contaminated electrolytes. Six other players, who remain anonymous, had been similarly let off. It Dajka fails in doping appeal has, however, emerged since that the ATP trainers were In August 2004, it was learned that cyclist Jobie Dajka not responsible for distributing this substance, although had failed in his appeal against his exclusion from the the source of the nandrolone was never discovered. As Australian Olympic team after the Court for Arbitration well as these positive tests, there have by now been in Sport dismissed his application. The Commonwealth more than 50 elevated test readings, with a further 23 Games gold medallist had been dropped from the team this year. WADA praised the ATP for its continued efforts 339 after admitting lying to a doping inquiry . to trace the source, but has advised handing over the 343 process to an independent scientific body . Police once again raid Giro hotel rooms The Giro d’Italia race, which is one of the most Football prestigious competitions the sport can offer, has once again attracted controversy as regards illegal drug- FIFA anti-doping agreement avoids expulsion taking. In late May, fraud squad detectives made a pre- from Olympics dawn raid of the hotel rooms of eight competitors and The anti-doping code agreed by anti-drugs agency searched the homes of over 100 competitors and WADA last year was intended to apply to all sports. officials in a variety of sports across the country. However, some sports have remained reluctant to Although no drugs were found in the town of Brunico, embrace this set of rules, and none more so than

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football. FIFA President Sepp Blatter had warned that he was not prepared to accept the mandatory two-year suspension required by WADA for a doping offence. This raised the very real possibility that football would 344 be banned from the forthcoming Olympic Games . However, this danger receded when FIFA decided to sign up to WADA – at least tentatively. It was announced that “common ground had been found” and that the signing was merely a declaration of intent rather than the precise form of an agreement. However, a FIFA spokesman insisted that the only matters which 345 remained to be settled were “legal formalities” . It later emerged that in fact professional football had been allowed to opt out of the two-year ban as part of the agreement. It was explained that “football was a special 346 case”, although exactly why remained unclear . 16. Family Law

[None]

94 Sport and the Law Journal Volume 12 Issue 2 17. Issues specific to individual sports

354 Football Steven Gerrard during the Switzerland v. England game . The Netherlands international Ruud van Nistelrooy Abolish draw, urges Blatter was banned for two World Cup qualifying matches for In late April 2004, the most senior figure in football having insulted Swedish referee Anders Frisk after his 355 called for drawn matches to be abolished, and that side’s defeat by Portugal in the semi-finals . every game should yield a winning team. Where a match ends with scores level, the issue should be Round-up of other items (all months quoted settled on penalties. This is but the latest in Mr. refer to 2004, unless otherwise stated) Blatter’s somewhat eccentric proposals, which have included widening the goalmouth and making women Lomana LuaLua. In April, the captain of the Democratic 347 footballers wear skimpier kit . Republic of Congo was dropped by his country after Mr. Blatter has also stated his belief that artificial having been sent off during an African Nations Cup 356 pitches are the future of football, and called upon fixture . countries to build more of these in order to improve their standards. One of the main reasons why he Cameroon. The Cameroon national side had six points supports this notion is that artificial pitches would mean deducted from their forthcoming World Cup qualifying 348 fewer players become injured . campaign, after they had ignored the world governing body and worn their controversial one-piece kit during 357 UEFA plan maximum squads of 25. the knockout stages of the African Cup of Nations . Football at the top level is experiencing a number of problems, the most serious being the lack of identification Jose Mourinho. The former Porto manager was issued of fans with their local teams and clubs going heavily into with a 10-match suspension by the Portuguese Football debt in the pursuit of success. European governing body Association following a flare-up with Sporting Lisbon 358 UEFA have been attempting to tackle at least some of defender Rui Jorge in February . these problems, and made a series of proposals which may well become mandatory ere long. The most significant of these proposals is that squads should have a Cricket maximum size of 25, and that sides should have at least 349 eight home-grown players on their books . If they ICC to relocate to Dubai become implemented, these plans would revolutionise In mid-May 2004, the International Cricket Council (ICC) the sport by compelling clubs to survive with much lower took a step closer to quitting its traditional headquarters staffing levels, and to use players qualified to represent at Lord’s in London and relocating to Dubai. This move the host country of the club in question. is seen as another blow to the deteriorating relationship However, Europe’s leading clubs, including the between English cricket and the sport’s world governing 359 powerful G14 group, may attempt to block these body . measures, which would drastically reduce their 350 numbers if the UEFA plans become reality . ICC to expand role of third umpire During the prestigious Champions’ Trophy, held in mid- Shirt-lifting celebrations to be penalised September, the International Cricket Council (ICC) In June 2004, FIFA issued a ruling whereby players introduced a major innovation, i.e. the calling of all front- removing their shirts in post-goal celebrations would be foot no-balls by the third umpire watching a television guilty of “unsporting behaviour” and automatically be screen , rather than by the on-field umpires. The 351 booked. The new rules came into effect on 1/7/2004 . innovation had a successful trial during the Videocon tri- series in Australia between Australia, India and 360 Disciplinary measures during Euro 2004 Pakistan . Francesco Totti, the Italian striker, was suspended for three games by UEFA after having been found guilty of “unsporting behaviour” i.e. spitting at the Danish player Christian Poulsen during the 0-0 draw which the two 352 teams played out during the Euro 2004 tournament . The player decided not to appeal against this measure, 353 and apologised to UEFA . Also during this tournament, Alexander Frei was suspended for 15 days for having spat at England player

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Footnotes

1 The Times of 17/5/2004, p. 20. 91 The Guardian of 12/5/2004, p. 3. 26/11/2003, Neue Juristische Wochenschrift 242 Press statement IP/04/735 OF 11/6/2004. 2 The Independent of 20/4/2004, p. 34. 92 Ibid. 14/04, p. 1057 et seq. 243 Press statement IP/03/690 of 15/5/2003. 3 Neue Juristische Wochenschrift 18/04, p. XXIV 93 The Independent of 13/7/2004, p. 28. 175 The Times of 1/7/2004, p. 49. 244 Press statement IP/04/698 of 1/6/2004. 4 Neue Juristische Wochenschrift 24/04, p. XX 94 The Independent of 19/8/2004, p. 32. 176 Daily Mail of 7/8/2004, p. 95. 245 Press statement IP/04/894, of 13/7/2004. 5 [2003] 2 Sport and the Law Journal p. 14-15. 95 The Daily Telegraph of 21/4/2004, p. S3. 177 Daily Mail of 3/7/2004, p. 78. 246 Press statement IP/04/930 of 15/7/2004. 6 The Guardian of 2/4/2004, p. 36. 96 See e.g. [2004] 1 Sport and the Law Journal 178 The Daily Telegraph of 22/4/2004, p. S5. 247 Press statement IP/04/401 of 30/0/2004. 7 The Guardian of 3/4/2004, p. 23. p. 22-23. 179 E.g. [2003] 2 p. 46, [2004] 1 p. 41, etc. 248 Press statement IP/04/854 of 7/7/2004. 8 The Daily Telegraph of 12/4/2004, p. S14. 97 The Times of 27/5/2004, p. 17. 180 [2004] 1 Sport and the Law Journal p. 40-41. 249 Press statement IP/04/937 of 16/7/2004. 9 The Daily Telegraph of 8/4/2004, p. S6. 98 Ibid. 181 The Times of 5/8/2004, p. 77. 250 The Independent of 3/8/2004, p. 53. 10 The Guardian of 9/4/2004, p. 29. 99 Daily Mail of 16/6/2004, p. 8. 182 The Guardian of 31/3/2004, p. 15. 251 [2004] 1 Sport and the Law Journal p. 93. 11 The Daily Telegraph of 12/4/2004, p. S14. 100 The Times of 18/6/2004, p. 4. 183 The Guardian of 8/7/2004, p. 12. 252 The Independent of 29/4/2004, p. 53. 12 The Times of 15/4/2004, p. 72. 101 The Daily Telegraph of 23/6/2004, p. 3. 184 The Times of 5/8/2004, p. 33. 253 The Independent of 17/3/2004, p. 55. 13 Ibid. 102 The Daily Telegraph of 24/6/2004, p. 5. 185 The Guardian of 28/7/2004, p. 11. 254 The Independent of 1/7/2004, p. 53. 14 The Daily Telegraph of 16/4/2004, p. S1. 103 The Daily Telegraph of 5/7/2004, p. S2. 186 The Guardian of 19/8/2004, p. S12. 255 Toronto Blue Jays Baseball Club et al. v. 15 Ibid. p. 1. 104 The Guardian of 22/6/2004, p. S11. 187 The Independent of 17/3/2004, p. 54. Minister of Finance for Ontario Case No. 03- 16 The Independent of 17/4/2004, p. S13. 105 The Independent of 15/3/2004, p. 22. 188 The Guardian of 10/7/2004, p. S11. CV-248830CM3, Ontario Supreme Court of 17 The Times of 17/4/2004, p. 35. 106 The Observer of 8/8/2004, p. 27. 189 See [2003] 3 Sport and the Law Journal p. Justice, [2004] Dominion Law Reports p. 536 18 The Mail on Sunday of 18/4/2004, p. 106. 107 Ibid. 115. et seq. 19 The Guardian of 20/4/2004, p. 34. 108 The Independent of 23/3/2004, p. 20. 190 The Daily Telegraph of 1/7/2004, p. S3. 256 Daily Mail of 9/8/2004, p. 71. 20 The Daily Telegraph of 21/4/2004, p. 1. 109 Ibid. 191 Ibid, p. S8. 257 The Guardian of 9/8/2004, p. 10. 21 The Daily Telegraph of 20/4/2004, p. S8. 110 The Independent of 1/4/2004, p. 52. 192 Decision of the District Court (Landesgericht) 258 See e.g. [2004] 1 Sport and the Law Journal 22 The Independent of 21/4/2004, p. 51. 111 The Independent of 23/3/2004, loc. cit. of Düsseldorf of 25/4/2003, Monatschrift des p.103; [2002] 2 Sport and the Law Journal p. 23 The Guardian of 28/4/2004, p. 1. 112 The Independent of 16/4/2004, p. 54. Deutschen Rechts 3/2004, p. 153. 112. 24 The Independent of 27/4/2004, p. 55. 113 Ibid. 193 Decision of the Netherlands Supreme Court 259 The Guardian of 9/8/2004, loc. cit. 25 The Daily Telegraph of 27/4/2004, p. S8. 114 Zijlstra, S. and Brouwer, J.G., «De onzin van (Hoge Raad) dated 20/2/2004 Nederlands 260 Ibid. 26 The Times of 29/4/2004, p. 89. politici over een Hooligan Act» , Nederlands Juristenblad of 19/3/2004, p. 640 et seq. 261 The Guardian of 17/7/2004, p. S11. 27 Ibid. Juristenblad of 11/6/2004, p. 1213. 194 Decision of the Ghent Court of Appeal (Hof 262 [2004] 1 Sport and the Law Journal p. 103. 28 The Daily Telegraph of 5/5/2004, p. S5. 115 Geudens. G., «De Voetbalwet – een stand van Beroep) dated 16/3/2001, Rechtskundig 263 The Guardian of 22/5/2004, p. 19. 29 The Guardian of 6/5/2004, p. 30. van zaken na de wijzigingswet van 10 maart Weekblad of 21/2/2004, p. 986. 264 Ibid. 30 The Independent of 11/5/2004, p. 29. 2003» NJB of 17/12/2003, p. 1354. 195 Markowetz, K, «Haftungsrechtliche 265 The Daily Telegraph of 28/6/2004, p. S14. 31 The Times of 11/5/2004, p. 67. 116 Decision of the Supreme Court (Hof van Ansprüche in Zusammenhang mit Doping”, in 266 [2003] 2 Sport and the Law Journal p. 115-6; 32 The Independent of 19/5/2004, p. 51. Cassatie) of 26/11/2002, in Rechtskundig [2004] 11 Osterrichische Juristenzeitung p. [2003] 3 Sport and the Law Journal p. 105. 33 The Daily Telegraph of 20/5/2004, p. S8. Weekblad of 15/5/2004, p. 1461 et seq. 401. 267 The Guardian of 8/4/2004, p. 34. 34 The Guardian of 22/4/2004, p. 34. 117 Breucker, M., “Präventivmaßnahmen gegen 196 The Times of 6/5/2004, p. 34. 268 The Independent of 19/5/2004, p. 22. 35 [2004] 1 Sport and the Law Journal p. 11. reisende Hooligans” Neue Juristische 197 The Sunday Times of 8/8/2004, p. B2. 269 The Sunday Telegraph of 21/3/2004, p. S3. 36 The Daily Telegraph of 27/4/2004, p. S8. Wochenschrift 2004/23, p. 1631 et seq. 198 The Observer of 2/5/2004, p. B1. 270 Ibid. 37 The Independent of 26/4/2004, p. 16. 118 The Independent of 13/5/2004, p. 12. 199 Josephson v. Merritt (City), Vancouver 271 The Daily Telegraph of 18/8/2004, p. 12. 38 The Guardian of 13/5/2004, p. 29. 119 Ibid. C961053, 2003 BCSC 1505 20 CCLT p. 44 et 272 Ibid. 39 The Observer of 23/5/2004, p. S8. 120 The Times of 13/4/2004, p. 1. seq. 273 The Sunday Times of 8/8/2004, p. 27. 40 The Guardian of 22/5/2004, p. S11. 121 The Times of 17/4/2004, p. 2. 200 The Times of 25/3/2004, p. 37. 274 The Independent of 24/7/2004, p. 64. 41 The Mail on Sunday of 23/5/2004, p. 52. 122 The Times of 20/4/2004, p. 31. 201 Ibid. 275 Ibid. 42 The Independent of 24/5/2004, p. 61. 123 The Independent of 6/5/2004, p. 23. 202 The Guardian of 21/8/2004, p. S15. 276 The Times of 28/8/2004, p. 35. 43 The Guardian of 11/6/2003, p. 30. 124 The Daily Telegraph of 20/5/2004, p. 14. 203 The Times of 3/7/2004, p. 21. 277 The Guardian of 2/8/2004, p. S19. 44 Ibid. 125 The Guardian of 25/5/2004, p. 10. 204 The Sunday Telegraph of 8/8/2004, p. 23. 278 [2003] 3 Sport and the Law Journal p. 106, 45 The Daily Telegraph of 2/7/2004, p. S8. 126 The Daily Telegraph of 2/7/2004, p. 6. 205 Ibid. [2004] 1 Sport and the Law Journal p. 105. 46 The Daily Telegraph of 10/7/2004, p. S5. 127 The Daily Telegraph of 30/7/2004, p. 11. 206 The Times of 7/4/2004, p. 31. 279 The Guardian of 2/8/2004, loc. cit. 47 The Daily Telegraph of 14/8/2004, p. 8. 128 The Guardian of 11/8/2004, p. 12. 207 Ibid. 280 Ibid. 48 The Guardian of 24/8/2004, p. S7. 129 The Times of 16/4/2004, p. 1. 208 The Independent of 1/7/2004, p. 24. 281 The Observer of 11/7/2004, p. S6. 49 The Times of 22/4/2004, p. 76. 130 Ibid. 209 Ibid. 282 Ibid. 50 The Guardian of 17/7/2004, p. 13. 131 The Independent of 7/5/2004, p. 47. 210 The Times of 3/6/2004, p. 38. 283 The Times of 28/8/2004, p. 35. 51 [2001] 2 Sport and the Law Journal p. 71. 132 The Times of 17/7/2004, p. 21. 211 Daily Mail of 16/3/2004, p. 69. 284 Ibid. 52 The Independent of 29/5/2004, p. 17. 133 The Daily Telegraph of 12/5/2004, p. S1. 212 The Times of 18/3/2004, p. 73. 285 The Observer of 8/8/2004, p. S10. 53 The Times of 21/5/2004, p. 31. 134 Ibid. 213 The Guardian of 19/3/2004, p. 15. 286 Ibid. 54 The Guardian of 13/8/2004, p. 30. 135 The Guardian of 4/6/2004, p. 15. 214 The Guardian of 31/3/2004, p. 29. 287 The Daily Telegraph of 10/8/2004, p. S1. 55 The Daily Telegraph of 23/8/2004, p. 7. 136 The Guardian of 30/8/2004, p. S7. 215 The Guardian of 16/6/2004, p. 12. 288 The Independent of 3/8/2004, p. 46. 56 The Guardian of 21/8/2004, p. 59. 137 [2003] 3 Sport and the Law Journal p. 23. 216 The Guardian of 31/3/2004, loc. cit. 289 The Mail on Sunday of 11/7/2004, p. 115. 57 The Guardian of 19/8/2004, p. 38. 138 The Guardian of 30/8/2004, loc. cit. 217 The Guardian of 22/4/2004, p. 16. 290 Ibid. 58 The Daily Telegraph of 24/4/2004, p. 15. 139 The Independent of 31/8/2004, p. 12. 218 The Guardian of 28/5/2004, p. 19. 291 The Sunday Telegraph of 15/8/2004, p. 4. 59 The Times of 31/5/2004, p. 34. 140 The Guardian of 31/5/2004, p. 13. 219 The Daily Telegraph of 11/5/2004, p. S8. 292 The Independent of 16/8/2004, p. 29. 60 [2004] 1 Sport and the Law Journal p. 11-12. 141 The Independent of 5/8/2004, p. 28. 220 The Guardian of 23/7/2004, p. 21. 293 The Times of 18/8/2004, p. 2. 61 The Independent on Sunday of 14/3/2004, p. 142 Ibid. 221 The Daily Telegraph of 16/7/2004, p. 7. 294 The Times of 18/8/2004, p. 71. S9. 143 The Guardian of 18/6/2004, p. S11. 222 The Independent of 7/4/2004, p. 15. 295 The Independent of 19/8/2004, p. 54. 62 The Daily Telegraph of 13/3/2004, p. S6. 144 The Guardian of 8/6/2004, p. 30. 223 Ibid. 296 The Sunday Telegraph of 22/8/2004, p. S12. 63 The Observer of 2/5/2004, p. 21. 145 The Guardian of 26/7/2004, p. 2. 224 The Independent of 11/8/2004, p. 21. 297 The Daily Telegraph of 26/8/2004, p. S8. 64 Ibid. 146 The Times of 15/7/2004, p. 13. 225 The Times of 3/7/2004, p. 3. 298 The Independent of 26/8/2004, p. 32. 65 The Independent of 12/4/2004, p. 20. 147 Ibid. 226 Daily Mail of 14/6/2004, p. 23. 299 The Independent of 31/8/2004, p. 22. 66 The Times of 8/7/2004, p. 34. 148 [2003] 3 Sport and the Law Journal p. 27. 227 Decision of the Bavarian Administrative 300 The Daily Telegraph of 27/8/2004, p. S6. 67 Ibid. 149 The Guardian of 18/8/2004, p. 14. Court of Appeal (Bayerische 301 [2004] 1 Sport and the Law Journal p. 105-6. 68 The Guardian of 3/6/2004, p. 32. 150 The Times of 18/6/2004, p. 43. Verwaltungsgerichtshof) dated 19/3/2004, 302 Daily Mail of 26/4/2004, p. 67. 69 Ibid. 151 Ibid. [2004] Deutsches Verwaltungsblatt p. 839 et 303 The Guardian of 8/5/2004, p. S23. 70 Fritzweiler, J., “Rechtsprechung zum 152 The Independent of 17/7/2004, p. 12. seq. 304 The Mail on Sunday of 9/5/2004, p. 107. Sportrecht in den jahren 2002 und 2003” 153 Ibid. 228 Decision of the Supreme Administrative 305 The Independent of 27/5/2004, p. 58. [2004] 14 Neue Juristische Wochenschrift p. 154 The Guardian of 25/8/2004, p. 14. Court (Conseil d’Etat) of 28/11/2003, [2004] 306 Daily Mail of 27/5/2004, p. 89. 989 et seq. 155 The Guardian of 2/8/2004, p. 15. 1 Revue française de droit administrative p. 307 The Guardian of 18/6/2004, p. S15. 71 The Guardian of 30/7/2004, p. 29. 156 The Guardian of 14/4/2004, p. 1. 205. 308 The Observer of 18/7/2004, p. S8. 72 Daily Mail of 30/7/2004, p. 87. 157 The Independent of 21/4/2004, p. 53. 229 The Guardian of 12/7/2004, p. 9. 309 The Guardian of 24/7/2004, p. S5. 73 The Times of 30/7/2004, p. 1. 158 The Guardian of 25/5/2004, p. 10. 230 Ibid. 310 Ibid. 74 Ibid. 159 The Guardian of 9/8/2004, p. 10. 231 The Guardian of 28/4/2004, p. 27. 311 The Mail on Sunday of 8/8/2004, p. 108. 75 Daily Mail of 31/7/2004, p. 76. 160 Ibid. 232 Ibid. 312 The Independent of 10/8/2004, p. S1. 76 Daily Mail of 11/8/2004, p. 72. 161 The Guardian of 29/5/2004, p. 17. 233 Decision of the Supreme Court (Cour de 313 The Daily Telegraph of 10/8/2004, p. S5. 77 Daily Mail of 2/8/2004, p. 60. 162 Ibid. Cassation) dated 17/3/2004, European 314 The Independent of 23/8/2004, p. 50. 78 Ibid. 163 The Independent of 20/3/2004, p. 29. Current Law May 2004, p. 146. 315 The Independent of 24/8/2004, p. 55. 79 The Independent of 4/8/2004, p. 50. 164 The Mail on Sunday of 14/3/2004, p. 128. 234 Rey, J. M., “Football players: single or joint 316 The Guardian of 3/6/2004, p. 35. 80 Daily Mail of 11/8/2004, p. 72. 165 The Daily Telegraph of 18/8/2004, p. S4. actors? An IP question”, [2003] 3 ISLJ p. 13. 317 The Daily Telegraph of 25/8/2004, p. S1. 81 Ibid. 166 Daily Mail of 19/7/2004, p. 5. 235 Case C-408/01, Adidas-Salomon AG and 318 The Guardian of 30/8/2004, p. S9. 82 Daily Mail of 27/8/2004, p. 89. 167 The Times of 11/8/2004, p. 62. Others v Fitnessworld Trading Ltd, not yet 319 The Daily Telegraph of 10/8/2004, p. S3. 83 Ibid. 168 Ibid. published, see Press release No. 94/03. 320 The Guardian of 2/4/2004, p. 33. 84 [2004] 1 Sport and the Law Journal, p. 20. 169 The Guardian of 17/8/2004, p. 3. 236 [2003] 3 Sport and the Law Journal p. 82. 321 The Guardian of 10/4/2004, p. S17. 85 The Times of 4/6/2004, p. 48. 170 Ibid. 237 [2002] 1 Sport and the Law Journal p. 70. 322 The Independent of 10/4/2004, p. 50. 86 Ibid. 171 The Guardian of 17/8/2004, p. 3. 238 The Guardian of 18/6/2004, p. 28. 323 The Guardian of 16/3/2004, p. 32. 87 The Guardian of 18/8/2004, p. S15. 172 [2001] 3 p. 21 et seq ; [2003] 1 p. 37. 239 The Guardian of 3/4/2004, p. S26. 324 The Guardian of 25/6/2004, p. S23. 88 The Guardian of 29/4/2004, p. 35. 173 [2004] 1 p. 83. 240 Written Question P-0600/04 (European 325 The Times of 26/6/2004, p. S32. 89 The Guardian of 23/8/2004, p. 11. 174 Decision of the Bavarian Court of Appeal Parliament) of 18/2/2004. 326 The Guardian of 1/7/2004, p. 30. 90 Ibid. (Bayerische Oberlandesgericht) of 241 Written Question P-3911/03 327 The Times of 5/8/2004, p. 76. 96 Sport and the Law Journal Volume 12 Issue 2

Footnotes

328 The Independent of 19/3/2004, p. 49. 329 The Guardian of 25/3/2004, p. 30. 330 The Independent of 26/3/2004, p. 46. 331 The Independent of 27/3/2004, p. 67. 332 The Times of 2/4/2004, p. 55. 333 The Daily Telegraph of 22/6/2004, p. S8. 334 The Daily Express of 15/6/2004, p. 63. 335 The Times of 3/7/2004, p. 45. 336 [2004] Sport and the Law Journal p. 5. 337 The Independent of 20/3/2004, p. 66. 338 The Guardian of 15/5/2004, p. S23. 339 The Independent of 11/8/2004, p. 28. 340 The Times of 27/5/2004, p. 88. 341 [2004] 1 Sport and the Law Journal p. 111- 112. 342 The Guardian of 17/7/2004, p. S18. 343 Ibid. 344 The Guardian of 18/5/2004, p. 27. 345 The Guardian of 21/5/2004, p. 30. 346 The Independent of 22/5/2004, p. 76. 347 The Guardian of 28/4/2004, p. 3. 348 Daily Mail of 14/7/2004, p. 75. 349 The Observer of 4/7/2004, p. S8. 350 Ibid. 351 The Independent of 23/6/2004, p. 57. 352 The Daily Telegraph of 18/6/2004, p. S12. 353 The Guardian of 19/6/2004, p. S6. 354 The Independent of 22/6/2004, p. 58. 355 The Independent of 3/7/2004, p. 75. 356 The Independent of 15/4/2004, p. 22. 357 The Sunday Telegraph of 18/4/2004, p. S3. 358 The Independent of 17/6/2004, p. 57. 359 The Independent of 14/5/2004, p. 64. 360 The Sunday Telegraph of 29/8/2004, p. S5.

97 Volume 12 Issue 2 Sport and the Law Journal Sport and the Law Journal Reports Index

(2004) SLJR 1-6 are reported in the Sport and the Law (2004) SLJR 8 Journal, Volume 12 Issue 1 BLAKE v GALLOWAY Personal injury – duty of care – injury caused during (2004) SLJR 1 unregulated sporting activity RAIT v LUNN Personal injury – assessment of damages – adverse (2004) SLJR 9 effects on sporting career BADRICK v BRITISH JUDO ASSOCIATION Interim injunction – judo – selection dispute – (2004) SLJR 2 application for referral of decision to arbitration WATTLEWORTH v GOODWOOD ROAD RACING COMPANY LTD & OTHERS (2004) SLJR 10 Motor Racing – duty of care to competitors – tort COMITE NATIONAL OLYMPIQUE ET SPORT FRANCAIS and ors v FEDERATION (2004) SLJR 3 EQUESTRE INTERNATIONALE & Anr SOUTHAMPTON LEISURE HOLDINGS PLC Field of play decisions – jurisdiction – reversal of v AVON INSURANCE PLC & OTHERS decision by sporting referee Insurance – football – knee injury – whether disablement occasioned solely and independently of (2004) SLJR 11 any cause other than the knee injury SHAW v SHROPSHIRE COUNTY PREMIER FOOTBALL LEAGUE (2004) SLJR 4 Amateur footballer – Racial Discrimination – Section AVELLINO v ALL AUSTRALIA NETBALL 12 of Race Relations Act 1976 ASSOCIATION LTD Australia – elite netball player prevented from playing (2004) SLJR 12 in interstate competition by competition rule as to BRADLEY v JOCKEY CLUB state of residency – whether rule was void as an Jockey Club – disciplinary committee – review – basis unreasonable restraint of trade of jurisdiction – contractual and non-contractual claims – supervisory jurisdiction of the Court (2004) SLJR 5 HAMBURGER SPORT-VEREIN E.V – v – (2004) SLJR 13 ODENSE BOLDKLUB JJB SPORTS PLC v OFFICE OF FAIR Football – training compensation on transfer – FIFA TRADING; ALLSPORTS LIMITED v OFFICE Regulations – quantification OF FAIR TRADING Competition Appeal Tribunal – Judgment on liability – (2004) SLJR 6 price fixing of replica football shirts – Appeal from IN THE MATTER OF THE WIMBLEDON decision of the OFT – Section 2 of the Competition FOOTBALL CLUB LIMITED (In Act 1998 administration) Football – insolvency – company voluntary (2004) SLJR 14 arrangement – unfair prejudice MECA-MEDINA & ANOTHER v COMMISSION OF THE EUROPEAN (2004) SLJR 7 COMMUNITIES (SUPPORTED BY THE TOOMEY (OF SYDICATE 2021) v BANCO REPUBLIC OF FINLAND) VITALICIO DE ESPANA SA DE SEGUROS Y Competition – freedom to provide services – anti- REASSEGUROS doping legislation adopted by the IOC – purely Football Club – Television Rights- Avoidance of sporting legislation Reinsurance relating to Relegation – Materiality of Misrepresentation to Prudent Underwriter

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The law reports in the Sport and the Law Journal are the Judge’s findings that (i) there was a representation compiled by barristers at 11 Stone Buildings, Lincoln’s that the underlying policy was an indemnity with a limit Inn, under the editorship of Alan Gourgey QC. The of pts 2.9bn and not a valued policy; (ii) the policy was individual reporters (indicated by their initials after the an indemnity agreed at 2.9 bn pts even if that amount date of the judgment) are Tim Penny, Nick Parfitt, Jamie exceeded the Club’s actual loss; (iii) there had been a Riley, Iain Pester, Damian Murphy, Martin Ouwehand misrepresentation and the reinsurers had been thereby and Reuben Comiskey. The Reports are published in induced. The issue in the appeal was whether it was chronological order and should be cited by their “SLJR” realistically possible that the net ascertained loss in the number. event would be less than pts 2.9bn and therefore We would be grateful if transcripts of judgments or whether the misrepresentation was a material one. awards which may be considered worth reporting are emailed to [email protected]. Similarly HELD (Dismissing the Appeal) any member of the Association who requires a 4. The Reinsurers were entitled to avoid the transcript of a reported case or has a query, can email reinsurance. The misrepresentation would have been the individual reporter concerned at material to a prudent underwriter. The contingent [surname]@11stonebuildings.com. obligation to refund the sum of Pts 500m for failure to qualify for the European competition was part of the overall scheme for payment for television rights. It could be valued and therefore taking it into account, on (2004) SLJR 7 the figures, there was a realistic possibility that the net Football Club – Television Rights- Avoidance of ascertained loss could have been less than Pts2.9bn. Reinsurance relating to Relegation – Materiality of Misrepresentation to Prudent Underwriter Commentary 5. In the law of insurance and reinsurance, it is not TOOMEY (OF SYDICATE 2021) v BANCO enough for an insurer or reinsurer to show that it was VITALICIO DE ESPANA SA DE SEGUROS Y induced by a misrepresentation to provide the insurance REASSEGUROS or reinsurance. As an important protection to the insured the insurer or reinsurer must also show that the [2004] All ER (D) 239 (MAY) misrepresentation would be material to a prudent Court of Appeal (Civil Division) underwriter. The question of materiality was addressed 18 May 2004 (Reporter: MO) by the parties in their expert evidence. The experts agreed that if the original policy was a valued policy for Facts Pts 2.9bn, then that was a material fact to know if there 1. Club Atletico de Madrid (“the Club”) was insured in was a realistic possibility that the net ascertained loss in respect of economic loss arsing from the relegation of the event of relegation might be less than Pts 2.9 bn their first team from the first division of the Spanish football league. A television company had required the 6. Given the agreement of the experts, the question of policy to protect the repayment of advances made fact for the court was whether there was such a against payments that would become due in respect of realistic possibility. The issue turned on the terms of the television rights. Prior to accepting the reinsurance, the contract between the Club and the television company, reinsurers were not shown the underlying policy taken which could be summarised as follows: out by the Club. They were simply given a slip policy a) it covered five seasons from 1998/9 to 2002/3; which provided: “This insurance to indemnify the b) for the right to broadcast the Club would be paid assured for their net ascertained loss of contracted annually a minimum of Pts 2bn; television rights arising directly as a consequence of the c) the Club would also be paid a further Pts 1bn if it relegation of the assured...Limit: pts 2,900,000,000. finished the season among the top for teams in the first division; 2. The Club’s first team was relegated at the end of the d) if the first team was relegated, the Club would be 1999/2000 season. The insurers settled the claim and paid only Pts 150m for all broadcasting rights of the payment was made to the television company. home games in the second division. However the reinsurers claimed for rescission and for a declaration that they had avoided the policy. They 7. There was an amendment on 16 August 1996 which alleged the insurers had made a material increased the amount to be paid to the Club annually misrepresentation as to the nature of the underlying but removed the bonus and required the Club to repay insurance in that the underlying policy was a “valued Pts 500m to the television company if it did not finish policy” and not “an unvalued policy” as represented in among the top four teams. There was then a further the description of the interest. amendment on 30 July 1998 providing that the obligation to repay would be triggered by failing to 3. The Judge decided in favour of the reinsurers and the qualify for the European competition. insurers appealed. On appeal there was no challenge to

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8. There was a separate agreement for broadcasting up a piece of bark and threw it at the Defendant, who rights in respect of the second team which provided was standing a few metres away and on higher ground. that the Club would be entitled to no payment if the It hit the Defendant on the lower body. The Defendant second team was relegated to the third division (which picked up the same piece of bark and threw it back. It would happen automatically upon relegation of the first hit the Claimant in the eye, causing significant injury. team. The reinsurers argued that the obligation to repay the Pts 500m should be taken into account, but not the 3. There was no suggestion that the injury was anything loss relating to the relegation of the second team, and other than accidental. Nobody, including the Defendant, the Club may be able to reduce its loss through had been aiming at the others’ heads, or at any other negotiation with the television company. specific area of the body. The bark was thrown by the Defendant as part of the game. There was no 9. The Court of Appeal upheld the Judge’s findings. The suggestion that there was any malice in the manner in Club was insured against the economic loss which which it was thrown. arose from the Club losing its status as a member of the first division in relation to the contract with the 4. The Claimant issued proceedings against the television company. This loss, the “net ascertained loss Defendant for negligence and battery. At the hearing of contracted television rights”, could only be the defence advanced arguments of contributory determined by calculating the difference between what negligence and volenti non fit injuria. At trial the judge the Club would have earned in the first division and rejected the suggestion of volenti, but held that the what it would have earned after relegation. The Court Claimant was contributorily negligent as to 50%. found that for this purpose the contingent liability to repay the sum of Pts 500 had to be brought into 5. The Defendant appealed. At the hearing of the appeal account, even though the contingency of the Club not the primary argument advanced on behalf of the qualifying for the European competition was not an Defendant was that there was no negligence at all insured risk. This is because such qualification was an because there had been no lack of reasonable care on integral part of the scheme for the payment of behalf of the Defendant. broadcasting rights. The retention or repayment of the sum of Pts 500m would have had a significant bearing Held (allowing the appeal) on the Club’s earnings. 6. The court started with the question of breach of duty. First it went back to the dicta of Diplock LJ in Wooldridge v Sumner [1963] 2 QB 43 where it was held (2004) SLJR 8 that a spectator of a sport takes the risk of any damage Personal injury – duty of care – injury caused during caused by any act of a participant, including any error of unregulated sporting activity judgment or of skill, unless the act shows a reckless disregard of that spectator’s safety. BLAKE v GALLOWAY 7. The court then referred to Condon v Basi [1985] 1 Court of Appeal (Sir Andrew Morritt VC, Clarke LJ, Dyson LJ) WLR 866 where Sir John Donaldson MR, addressed the [2004] EWCA Civ 814; [2004] All ER 315; The Times, 19 July 2004 question of the duty of care between participants in a 24 June 2004 (Reporter: RC) sporting event, and held that although there is a general duty of care to be exercised towards those around you, Facts the degree of care to be expected depends on all the 1. The Claimant and the Defendant were both about 15 circumstances, including, of course, the nature and rules at the time of the accident giving rise to the claim, and of the game the parties are engaged in, but that some they played in a jazz quintet with three other friends of departure from the rules was also to be expected. the same age. They were practising one day and stopped for a short break. They went outside to the 8. The last case considered by the court was Caldwell v grounds of the house in which they were practising, Fitzgerald [2001] EWCA Civ 1054, in which the Court of and they started to engage in horseplay. Appeal held that in a claim for negligence arising in the course of a sporting event, the threshold for liability was 2. The game involved throwing bits of bark chippings high. It will not be met simply by a momentary lapse in and twigs at each other: these were lying all about. At skill (and therefore care) in the heat of an event, and will first the Claimant simply stood to one side and be difficult to prove in the absence of conduct that points watched, but soon he joined in. At one stage he picked to reckless disregard for a fellow contestant’s safety.

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9. The court characterised the horseplay in the present Facts case as being in the nature of informal play governed by 1. Jean-Rene Badrick (“the Claimant”), 14 years old, tacitly agreed conventions, which the Claimant would brought an application by his litigation friend, his have been aware of prior to joining in. There was no mother, after he was not selected by the British Judo expectation that skill or judgment would be exercised. Association (‘the BJA’) to compete in the 2004 Judo European Cadet Championships (‘the Cadet 10. This horseplay was analogous to organised sport in Championship’). The application requested the Court to three ways: refer the dispute to arbitration by the Sports Dispute (i) they both involve consensual participation in an activity Resolution Panel (‘the SDRP’). which involves physical contact or the risk of it; (ii) decisions are expected to be made quickly and often 2. The BJA is responsible for the organisation and instinctively; and management of competitive judo in Great Britain (iii)the nature of the activity makes it difficult to avoid including the selection of teams for the Cadet the risk of harm. Championship. The Cadet Championship was due to Accordingly Diplock LJ’s formulation applied to this commence in Holland over the weekend of 3 – 4 July. case, slightly expanded such that there is a breach of the duty of care owed by one participant to another only 3. On 11 June 2004, the BJA announced the team for where that participant’s conduct amounts to the Cadet Championship; a Mr. Stuart was selected recklessness or a very high degree of carelessness. ahead of the Claimant. The BJA informed the Claimant that a factor in the decision not to select him was his 11. Given that the Claimant had consented to join in the decision not to compete in the British Cadet horseplay with its inherent risks, the Defendant could Championship (the Claimant had competed in a not be liable in battery. different event instead).

Commentary 4. The Claimant appealed the decision by letter dated 15. This case does not make any new law so far as 11 June 2004 and the BJA said it would apply the BJA’s sport is concerned: its application is more to published selection procedure in relation to junior consensual, but unregulated, activity such as the championships. The Claimant then made his appeal and horseplay in question. However, it is a welcome sent a cheque for £50 for the appeal fee. On 21 June restatement of the principles applied in assessing the 2004, the appeals panel rejected the appeal. standard of conduct of participants in sporting events, and whether that conduct gives rise to legal liability. 5. Correspondence ensued in which the Claimant requested a further appeal before an arbitrator. That 16. The judgment also highlights one other matter, request was rejected. On 30 June 2004, a telephone albeit one that is found in the earlier judgments cited by request was rejected and the Claimant then made his the court. This is that in assessing conduct, although application which was listed for the next day. The regard must be had to the rules, these are be no means application was without notice although the BJA attended. determinative. If here regard must be had to the conventions tacitly agreed between the teenagers Held involved, so in the context of sport must regard be had 6. The Court made no finding in relation to the decision to the tacit conventions of the sport, even if they of the appeals panel since there was insufficient amount to foul play under the rules. It looks like evidence before it. business as usual for front row forwards. 7. The BJA was obliged to afford the Claimant the full protection of the published selection appeals procedure (2004) SLJR 9 applicable to junior players (there was no appeal Interim injunction – judo – selection dispute – procedure in relation to cadets). Such an obligation was application for referral of decision to arbitration implicit in the correspondence between the parties and the acceptance of the £50 cheque. BADRICK v BRITISH JUDO ASSOCIATION 8. The Court construed the relevant term from the High Court of Justice, Chancery Division, Lightman J. selections appeals procedure. The provision was badly 1st July 2004 (Reporter: DM) drafted but the Court concluded that an appeal would only be referred to the SDRP if all interested parties signed up

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to the process. In the absence of such consent, there (2004) SLJR 10 was no right to determination by an arbitrator. Field of play decisions – jurisdiction – reversal of decision by sporting referee 9. Neither the BJA (who refused to consent) nor Mr. Stuart (who as a matter of common-sense had nothing COMITE NATIONAL OLYMPIQUE ET to gain by such consent) had signed up to the process. SPORT FRANCAIS and ors v FEDERATION Therefore the Claimant was bound by the decision of EQUESTRE INTERNATIONALE & Anr the appeals panel. Court of Arbitration for Sport, Ad hoc Division – Games of the 10. Even if the Claimant had established an arguable XXVIII Olympiad – Athens case, the Court concluded it would not have granted CAS arbitration No. CAS OG 04/007 relief in any event. There was unpardonable delay from 21 August 2004 (Reporter: JR) the decision subject to challenge. Facts 11. Where determination by the Court was required in 1. In the 3 day eventing competition at the Athens time to enable substitution to be effected at a Olympics, the Ground Jury ruled that a time penalty be championship to be held 3-4 July, a delay in making an imposed on the German eventer Bettina Hoy for failing to application to court prevented justice being done. complete a jumping event within the required time limit. Specifically, the BJA had not had time to put in full evidence and secondly, as a matter of practicality, the 2. In accordance with the rules of the Federation prospects of an arbitrator making a decision (on a Equestre Internationale (“FEI”), the eventing complicated matter), upon which Mr. Stuart would have competition is judged by a Ground Jury comprising three to be heard (when he was due to leave the country the persons. One of its responsibilities is to rule on all times following day), in time for it to be effective, was highly and penalties in the show jumping events. The FEI Rules doubtful. provide that a bell is used to signal the start of the round for the particular competitor. After the bell has been rung Commentary the rider has forty five seconds within which to cross 12. Sports litigation is prone to revealing an unpalatable the start line and is regarded as having started when he tension between the Corinthian ideal that sport is or she crosses the start line, or when the forty five supposed to be a pleasurable pastime, pursued for the seconds have elapsed, whichever is the earlier. At the love of the game, and the reality where winning is all Athens Olympics a computerised timing device was that matters and all avenues, including litigation, are automatically triggered and measured the time taken by considered justifiable means towards that essentially the rider to complete the course. This must be selfish end. This case reveals just such a tension. It is accomplished within a maximum of ninety seconds after faintly depressing to think that a 14 year old amateur the starting line has been crossed. Simultaneously with judo competitor ends up in the High Court by his the computerised device, the stadium clock in the arena litigation friend his mother, in order to dispute his non- is started by a member of the Ground Jury. This clock selection for a prestigious cadet championship. may be stopped and restarted when the need arises.

13. The Court steered well clear of making any such 3. Bettina Hoy competed in the first round of the show emotive comment on the presence of the parties jumping, the bell rang and the forty five second countdown before it. In the end, the application was defeated as a commenced. She crossed the start line thereby matter of construction of the relevant provisions of the automatically triggering the computerised timing device, BJA’s rules and as a matter of practicality due to the but as she approached the first jump she turned her horse delay in making the application when the championship away and made a wide circle which brought her once again was looming in a matter of days in a different country. behind the start line. She then proceeded to cross the start line a second time. Immediately before she did so the 14. The case emphasises the need for special urgency stadium clock was reset to zero and indicated her time in the case of selection disputes. When a short time from the moment of her second crossing of the start line. frame constricts such disputes, the aggrieved party may However the computerised device continued to measure need to reduce its pre-action correspondence to the her time from the moment of the first crossing with the bare minimum and take the risky plunge into litigation effect that, although the stadium clock indicated that she with all the attendant costs risks. had completed the course in less than the allotted ninety seconds, her actual time was 12.61 seconds slower.

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4. The result of the Ground Jury ruling was that, in the should be accepted. Such an issue depended on an individual competition, Leslie Law of Great Britain won interpretation of the relevant rules. the gold medal, Kimberly Seversen of the USA won the silver and Pippa Funnell of Great Britain the bronze. In 8. The NOCG argued as follows: the team competition France won the gold medal and a. The CAS Ad hoc Division lacked jurisdiction to her the the silver and bronze medals went to Great Britain and present appeal in that Art 170.2.2 of the FEI General the USA respectively. Regulations provided that appeals against the decisions of the Appeal Committee on appeal from 5. This prompted Ms Hoy and the National Olympic the Ground Jury were not appealable. Committee of Germany (“NOCG”) to appeal to the FEI’s b. Art 203.1.2 of the FEI Rules entitle the Ground Jury Appeal Committee on the same evening. The Appeal to interrupt the 45 second countdown should Committee considered whether it had jurisdiction to unforeseen circumstances arises. The existence of entertain the appeal and the three members of the Appeal unforeseen circumstances was a question of Committee were unanimously of the view that they had interpretation and not fact. jurisdiction pursuant to Art 163.6.1 of the FEI Rules in that c. There had been no violation of due process at the the case turned on the interpretation of the FEI Rules. In hearing before the Appeal Committee as the other exercising it jurisdiction the Appeal Committee concluded competitors had no right to be heard and could not that the countdown had been restarted, resulting in a clear have made any contribution to the case. injustice to Ms Hoy. The Appeal Committee therefore set aside the Ground Jury’s decision and removed the time Held (allowing the appeal) penalties with the effect that Bettina Hoy was awarded 9. The ruling of the Ground Jury in deciding to impose a the gold medal in the individual competition while the time penalty on Ms Hoy was of a purely factual nature German team received the team gold. As a consequence within its exclusive jurisdiction. There was therefore no Law and Seversen were downgraded to silver and bronze merit in the argument that the case involved an respectively in the individual competition, while in the interpretation of rules. If the issue had been one of team competition France and Great Britain were demoted interpretation, there would have been an express to silver and bronze positions. reference in the Appeal Committee’s decision to the relevant rule or rules giving rise to the issue. The mere 6. The French, British and United States National assumption by the Appeal Committee that the case Olympic Committees (“NOCs”) and their National concerned an interpretation of the rules could not have Equestrian Federations appealed to the Court of the effect of creating such an issue. It therefore followed Arbitration for Sport, Ad hoc Division, and argued that: that the Ground Jury’s ruling was unappealable in the a. The FEI Appeal Committee erred in holding that the light of Art 163.6.1 and Art 170.2.1 of the FEI Rules and appeal before it involved a question of the that the Appeal Committee lacked jurisdiction to entertain interpretation of the FEI Rules in that no Rule had been the appeal brought by Ms. Hoy and NOCG. Accordingly cited in its decision and no interpretation was carried the Appeal Committee’s decision was a nullity. out. Therefore the issue was simply one of fact. b. The Appeal Committee had failed to apply due 10. On the basis of the finding on jurisdiction, it was not process by not giving notice to the various bodies necessary to consider the submission that there had been and individuals affected by the appeal. a failure of due process (although this appeared to be c. In any event the CAS has previously ruled that the persuasive on its face). Similarly the Court did not have to CAS does not review decisions taken or rulings deal with the merits of the Ground Jury’s ruling which made on the playing field except in cases where bad was a “field of play” decision within its competence in faith or malice had been demonstrated or was the course of an event under its exclusive control. otherwise involved cf. Segura v IAAF (CAS OG 00/013 para 7 and 23); KOC v ISU (CAS OG 02/007 11. Therefore the decision of the FEI Appeal Committee para 5); FFE v FEI (TAS 2003/A 490 para 29); and was set aside and the ruling of the FEI Ground Jury was CPC v IPC (CAS 2000/A/305 para 5). reinstated.

7. The FEI submitted that the Appeal Committee had Commentary correctly held that the issue was one of interpretation 12. Apart from being an important precedent specific to rather than fact. It was not in issue that Ms Hoy had the application of the FEI Rules on the question of crossed the line twice. What was in issue was whether jurisdiction, this decision highlights the ever increasing the time measured by the computerised timing device importance of the legal application of sporting rules and

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the significant role it plays in deciding the outcome of the Employment Tribunal complaining of the suspension sporting competitions after the event. With the increase imposed by the First Respondent from 5 April to the in sporting competition and the need to regulate events end of the season and its refusal to renew his to uphold the integrity of the result, a courtroom can be registration for the next season. just as important as the field of play in deciding the outcome even in a competition such as the Olympics 6. Section 12(1) provides that: whose ideals are stated to be rooted in the latter. It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or (2004) SLJR 11 trade to discriminate against a person: Amateur footballer – Racial Discrimination – Section (a) in the terms on which it is prepared to confer on him 12 of Race Relations Act 1976 that authorisation or qualification; or (b) by refusing, or deliberately omitting to grant, his SHAW v SHROPSHIRE COUNTY PREMIER application for it; or FOOTBALL LEAGUE (c) by withdrawing it from him or varying the terms on which he holds it. [2004] All ER (D) 98 (Sep) Employment Appeal Tribunal 7. Section 78 defines “profession” as “including any 16 September 2004 (Reporter: MO) vocation or occupation”

Facts 8. The Tribunal concluded that section 12 did not apply 1. The Appellant was an amateur footballer and played in and the Appellant appealed to the Employment Appeal a team which was part of the First Respondent’s football Tribunal. league. The First Respondent was responsible for the discipline and governance of its teams. The Second Held (dismissing the appeal) Respondent was the county football association that set 9. There was no jurisdiction for the Appellant to bring a rules and standards for the league. It acted under the claim under section 12. The circumstances of the case authority of the Football Association which in turn was did not appear to relate to the employment field, even linked to FIFA. This meant that a player banned from playing in the wide sense. locally would be banned nationally and internationally. 10. Neither of the Respondents was a body that 2. None of the players in the league were semi granted some qualification or authorisation to a person professional or professional players, but the league was who has satisfied appropriate standards of competence a “feeder league” for the larger West Midlands league to practice a profession, calling or trade. An amateur which included some semi-professional players. footballer does not carry out a profession, calling or trade: Triesman v Ali [2002] IRLR 489 3. On 23 February 2002 the Appellant was reported by a referee of a match involving his team as a result of his 11. The Respondents had limited powers of conduct as a spectator. He was reported to the Second organisation and discipline which could not affect the Respondent for breach of their Rules of Conduct and Appellant’s overall status as a footballer. after a disciplinary hearing was suspended from competitive football for a total of 35 days. The Commentary suspension was due to end on 5 April. 12. The Appellant argued that playing competitive amateur football could lead to semi-professional or 4. The First Respondent then resolved to suspend the professional status and was therefore was a profession or registration of the Appellant from 5 April to the end of trade which fell within section 12. The Appellant argued the season in May 2002. This prevented the Appellant that registration with the league and with the National from playing in the First Respondent’s league. Upon Football Association, through the Second Respondent, attempting to re-register for the new season, the was a gateway to the profession because it was Appellant was summoned before the First Respondent necessary to take these steps in order to play competitive for a hearing relating to his previous misconduct. football in a league in Shropshire. It was argued that the Respondents were “authorities or bodies” under section 5. The Appellant brought a claim for discrimination 12 because they had powers of registration which is a under section 12 of the Race Relations Act 1976 before form of authorisation or qualification.

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13. The Appellant relied on British Judo Association v Petty the Court of Appeal found that section 12 was “not [1981] IRLR 484 which concerned a female judo instructor intended” to cover this type of situation and it is this who had obtained a certificate from the Association as a approach that the EAT employed in the present case. qualified and paid referee. The Association instituted a policy of not allowing women to referee men’s 19. This case can be compared to decisions in which competitions. She complained that the Association courts have had to construe whether the “restraint of amounted to discrimination in relation to a qualification trade” doctrine applies to sportsmen who do not which allowed her to work as a paid instructor. necessarily rely on sport for a living. In Gasser v Stinson (15 June 1988, QBD), for example, Scott J focused on the 14. The EAT, Brown-Wilkinson J presiding, dismissed structure of an individual’s rights and obligations and the the appeal against her successful claim. It held that prospect of earning income through sponsorship linked to section 13 of the Sex Discrimination Act 1975 covered an athlete’s participation in competition. In Avellino v All all cases where the qualification in fact facilitated Australia Netball Association Ltd [2004] SASC 56 the employment, whether or not it was intended by the South Australian Supreme Court held that whilst a authority or body conferring the qualification. netballer’s activities did not provide her with her main source of income, they were sufficiently significant for her 15. The Respondents argued that neither Respondent to be regarded as a professional player. It seems that the was a body covered by section 12 since they did not capacity to earn money from sport is too arbitrary an have the ability to confer a qualification or status which indicator as to whether a sportsperson can be found to be would enable the Appellant to call himself a practising carrying on a profession or trade and therefore entitled to footballer. It was argued that an amateur footballer have his/her activities protected by the Courts. cannot be said to be part of a profession or vocation, despite playing in a competitive league. (2004) SLJR 12 16. The Respondents successfully relied upon Triesman Jockey Club – disciplinary committee – review – basis v Ali [2002] IRLR in which the National Executive of the of jurisdiction – contractual and non-contractual Labour Party suspended two of its members from office claims – supervisory jurisdiction of the Court within, or representation of, the Party. As a consequence neither could be nominated as a candidate and brought a BRADLEY v JOCKEY CLUB claim under section 12 alleging they had been treated less favourably on the grounds of race. High Court (Queen’s Bench Division), Richards J [2004] EWHC 2164 1 October 2004 (Reporter:TP) 17. The Court of Appeal in Triesman held that the Party’s selection of a candidate for local government Facts elections or nomination to the pool of prospective 1. The claimant (“B”) had been a jockey until 1999 and parliamentary candidates was not covered by section since retiring he had carried on business as a 12. The Court of Appeal found that the Labour Party bloodstock agent. was not the type of qualifying body to which the section was intended to apply. Its activities were carried 2. During 2001, B gave evidence in support of the out for its own political purposes and there was no defence case in the trial of a number of persons accused conferring of status in any meaningful sense. To apply of importation or supply of cocaine. Part of the defence section 12 would be artificial because: case was that the defendants’ involvement together a) section 12 was not intended to cover a circumstance related not to drugs but to the provision of information that does not relate to employment; and about racehorses for the purposes of a gambling b) the obvious application of section 12 is to bodies organization. B gave evidence at the Crown Court to the granting qualifications to “a person who has satisfied effect that he had supplied confidential information to appropriate standards of competence, to practice a various persons in return for financial reward. profession, calling or trade” such as in the medical field. 3. B was notified by the Jockey Club that a formal inquiry 18. Interestingly, the Court of Appeal said that being a would be held into a number of matters arising from his Labour Party Councillor was not to be engaged in a evidence given in the Crown Court. In 2002 he was profession and whilst being entitled to allowances some charged with breaches of the Rules of Racing (“the of the time, it is not an activity from which the councillor Rules”), and a disciplinary inquiry was held, the will earn his living or receive a salary. In effect, however, committee comprising 3 members of the Jockey Club

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and a legal assessor. The charge was that B had provided be surprising and unsatisfactory if a private law claim in information regularly for reward between 1984 and 1999, relation to the decision of a domestic body required the and was based primarily on the transcript from the court to adopt a materially different approach from a Crown Court. B was represented by Counsel and judicial review claim in relation to the decision of a solicitors. He was found guilty by the disciplinary public body. In each case the essential concern should committee of providing privileged information for material be with the lawfulness of the decision taken: whether reward, and other offences under the Rules, and the the procedure was fair, whether there was any error of disciplinary committee imposed an 8 year disqualification. law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so on. 4. B appealed to an appeal board constituted under the Rules of Racing, which comprised a retired High Court 8. The learned Judge drew on a long line of authority, Judge and 2 members of the club. The appeal on culminating in the contractual case of Wilander v Tobin liability was dismissed; the appeal against sentence was [1997] 2 Lloyds Rep. 293, in which Lord Woolf MR held allowed in part, and the sentence was reduced to a 5 that the Court could intervene if the appeals committee year disqualification. of the ITF failed to act fairly, for example, by failing to take into account material considerations or took into 5. By these proceedings, B challenged the imposition of account irrelevant considerations or misdirected itself in the penalty as disproportionate and unlawful. It was law or if there was no evidential basis for the decision. common ground that the court had jurisdiction to review the decision made on the appeal, irrespective of whether 9. He also considered the decision of the Court of the parties were in a contractual relationship, but the Appeal at the interlocutory stage in Modahl, in which parties were not agreed as to the correct approach on Lord Woolf MR started that he could see no reason either the contractual or non-contractual basis or on the why there should be any difference as to what precise nature of the court’s function in such case. constitutes unfairness between public and private law bodies or principles, or why the standard of fairness Held (dismissing the application) required by an implied term should differ from that (i) Non-contractual jurisdiction required of the same tribunal under public law.

6. It was held that, in accordance with the principles 10. The learned judge held that, although these stated in Nagle v Felden [1966] 2 QB 633 and Modahl v authorities concerned the issue of fairness of the British Athletics Federation [2002] 1 WLR 1192, in a non- decision, rather than the proportionality of a sentence, contractual context the courts exercise a supervisory they underlined the importance of recognizing that the power and can grant declarations and injunctions should Court’s role is supervisory rather than that of the primary the regulatory body in question act unlawfully. Following decision-maker. The Court’s role is to determine whether Stevenage Football Club v Football League 9 Admin LR the decision reached falls within the limits of the 109 and Newport Association Football Club v Football decision-maker’s discretionary area of judgment. If it Association of Wales [1995] 2 All ER 87, the court held does, the penalty is lawful; if it does not, the penalty is that this supervisory jurisdiction exists despite the unlawful. It is not the role of the court to stand in the doubts expressed by Hoffmann LJ in R v Disciplinary shoes of the primary decision-maker, strike the balance Committee of the Jockey Club ex parte Aga Khan [1993] for itself and determine on that basis what it considers 2 All ER 853 to the effect that there was an the right penalty should be. The court paid particular “improvisatory air about this solution”. The court held regard to the fact that the appeals board included that the jurisdiction exists both in relation to “expulsion” members who are knowledgeable about the racing cases, as in Nagle v Felden, and “forfeiture” cases, industry and therefore better placed than the court to although in the latter case it was likely that a contract decide on the importance of the rules in question and the would also exist between the parties. precise weight to be attached to breaches of those rules.

7. The learned Judge held that, as for the precise nature (ii) the contractual jurisdiction of this supervisory jurisdiction, the most important point 11. The court considered the circumstances and held to make was that it was supervisory. The function of that there was a contract between the parties which the court is not to take the primary decision but to arose out of an exchange of correspondence. B’s ensure that the primary decision-maker has operated counsel submitted that the Jockey Club impliedly within lawful limits. It is a review function very similar undertook that any penalty they imposed would be to that of the Court on judicial review. Indeed, it would proportionate and that it was open to the court to

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determine the issue of proportionality, and if it decided Kennel Club, and rejects the notion that the court is entitled that the penalty imposed was not proportionate it could to put itself in the position of the tribunal in the event that it impose a lesser penalty in accordance with its views. takes the view that the tribunal was wrong in its decision as to sentence. Thus, in any given case the decision on 12. The court rejected B’s submissions in this regard. The sentence may well be wrong, but the court may only Judge considered the Wilander and Modahl (nos 1 and 2) interfere with that decision if the tribunal stepped outside decisions again, this time in a contractual context, in the limits of its discretionary area of judgment. In practice, support of the proposition that the role of the court is this is likely to prove a difficult hurdle to overcome. supervisory, even in a contractual situation. Although the decision of the Court of Appeal in Modahl (no 2) concerned a substantive decision rather than a challenge (2004) SLJR 13 to the penalty, the Judge nevertheless considered it ‘very Competition Appeal Tribunal – Judgment on liability – relevant’ on the issue of what terms should be implied price fixing of replica football shirts – Appeal from by the court. Finally, the court considered the decision in decision of the OFT – Section 2 of the Competition Colgan v Kennel Club, unreported, 26 October 2001, and Act 1998 rejected the submission that Colgan was authority for the proposition that the court could step into the shoes of JJB SPORTS PLC v OFFICE OF FAIR the appeal board and determine the appropriate penalty. TRADING; ALLSPORTS LIMITED v OFFICE OF FAIR TRADING 13. The learned Judge held that the contractual and non- contractual claims called for the adoption of the same Competition Appeal Tribunal, Sir Christopher Bellamy approach towards the issue of penalty. In each case the (President), Mr Barry Colgate, Mr Richard Prosser OBE [2004] court’s role is supervisory and the question for the court CAT 17 is whether the appeal board reached a lawful decision, in 1 October 2004 (Reporter: TP) particular whether the appeal board’s decision fell within the limits of its discretionary area of judgment. Facts 1. In decision number CA 98/06/2003 dated 1 August (iii) proportionality 2003 (“the decision”), the OFT found that a number of 14. The court considered the evidence and the findings undertakings had engaged in price fixing of replica of the appeal board and held that the approach adopted football kits during 2000 and 2001, contrary to the by the appeal board was impeccable and that none of its Chapter 1 prohibition imposed by Section 2 of the findings went beyond what was reasonably open to it on Competition Act 1998 (“the Act”). the evidence. The appeal board was entitled to reach the decision it had reached and the Claim was dismissed. 2. Section 2 provides what is known as “the Chapter I prohibition” in the following terms: Commentary 15. The decisions of the Court of Appeal in the Wilander “2(1) subject to Section 3, agreements between and Modahl (Nos 1 and 2) cases indicate that the basis of undertakings, decisions by associations of undertakings the court’s supervisory jurisdiction is the same as the or concerted practices which (a) may affect trade within approach of the Court when dealing with a judicial review the UK, and (b) have as their object or effect the of the decision of a public body – the underlying concept prevention, restriction or distortion of competition is whether the affected person received a fair hearing, within the UK, are prohibited unless they are exempt .... whether there was procedural unfairness in any material respect and whether the decision was perverse. It is to 2(2) subsection (1) applies, in particular, to agreements, be noted that the court will allow a considerable margin decisions or practices which (a) directly or indirectly fix of latitude or tolerance to the decision-making body, purchase or selling prices or any other trading conditions, which is better placed than the court to make a decision (b) limit or control production, markets, technical on whether or not there has been a breach of its Rules. development or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent 16. This case extends that approach to the question transactions with other trading parties, thereby placing whether the penalty imposed by the sports disciplinary them at a competitive disadvantage; (e) make the body was proportionate, and as such it is a significant conclusion of contracts subject to acceptance by the decision. It clarifies somewhat the possible ambiguity in other parties of supplementary obligations which, by their approach which might appear from the decision in Colgan v nature or according to commercial usage, have no

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connection with the subject matter of such contracts.” the Court of First Instance stated that, although the concept of a concerted practice implies the existence of 3. In the decision, the OFT imposed substantial reciprocal contacts, that condition is met where one penalties (in some cases amounting to several millions competitor discloses its future intentions or conduct on of pounds) on the relevant undertakings, pursuant to the market to another where the latter requests it or, at Section 36 of the Act. The respondents which were the very least, accepts it. subject to these penalties included Umbro Holdings Limited (“Umbro”), Manchester United PLC (“MU”), 9. The Tribunal held that an “agreement” under Section the Football Association (“the FA”) and a number of 2 of the Act could be made out by an expression of the companies specializing in the business of high street parties’ joint intention to conduct themselves on the sports retail shops including the appellants, JJB Sports market in a particular way, and that the concept centres PLC (“JJB”) and Allsports Limited (“Allsports”). around the existence of a concurrence of wills. It could also be manifested by one party’s tacit acceptance of 4. Umbro and MU appealed against sentence but not another party’s wish to achieve an anti-competitive goal. liability, and the judgment under consideration does not It can be constituted by an understanding, even if there deal with the issues of the appeals against sentence. is nothing to prevent that party from disregarding or going back on that understanding. 5. The infringements held by the OFT to have been established were alleged agreements or concerted 10. As for a concerted practice, this is collusion which falls practices between a number of undertakings relating to short of an agreement which knowingly substitutes the fixing of retail selling prices of England and MU practical cooperation between the parties for the risk of replica shirts. The essence of these appeals was that competition. “Each economic operator must determine JJB and Allsports denied the existence of the independently the policy which he intends to adopt on the agreements or concerted practices alleged against them. market including the choice of the persons and undertakings to which he makes or offers or sells”, which 6. In the course of a lengthy Judgment (which runs to 300 “strictly precludes any direct or indirect contact between pages or so), the tribunal considered a number of significant such operators, the object or effect whereof is either to legal issues, notably (i) what was the appropriate standard influence the conduct on the market of an actual or of proof in respect of alleged infringements under the Act, potential competitor or to disclose to a competitor a and (ii) the law on agreements and concerted practices course of conduct which they themselves have decided to under Section 2 of the Act. adopt or contemplate adopting on the market”. “In particular, a concerted practice may arise if there are Held (dismissing the appeal of Allsports and reciprocal contacts between the parties which have the allowing the appeal of JJB in part) object or effect of removing or reducing uncertainty as to 7. That, in accordance with Section 60 of the Act, the future conduct on the market.” “The fact that only one meaning of the phrase “agreements or concerted participant reveals his future intentions or other practices” is to be determined in a manner consistent competitive information does not exclude the possibility of with decisions of the European Court of Justice, the a concerted practice, since the recipient of the information Court of First Instance or the Commission of the din question cannot normally fail to take that information European Communities under Article 81(1) of the EC into account when formulating its policy on the market.” Treaty, the wording of which is followed in Section 2(1) of the Act. 11. The Tribunal considered in detail what standard of proof was applicable to alleged infringements of the 8. The Tribunal considered the following leading cases Chapter I prohibition (the burden of proof being on the in support of an analysis of the European case law OFT to prove the infringements in question). The which emphasized the broad range of circumstances Tribunal considered the decision in Napp v Director which are capable of leading to a conclusion that there General of Fair Trading [2002] CAT 1, in which the has been an agreement or a concerted practice: ICI v Tribunal had held that (i) the Director-General’s Commission [1972] ECR 619; Suiker Unie v concession that the proceedings were ‘criminal’ for the Commission [1975] ECR 1663; Commission v Anic purposes of Article 6 of the European Convention on Partecipazioni [1999] ECR I-4125; Bayer v Commission Human Rights had been made properly, particularly since [2000] ECR II-3383; Cimenteries v Commission [2000] the penalties under the Act are intended to be severe ECR II-491, and Tate & Lyle v Commission [2001] ECR and to have a deterrent effect, (ii) the fact that Article 6 II-2035. By way of example, in the Cimenteries case, applied did not of itself lead to the conclusion that the

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proceedings must be subject to the procedures and allegations and the very substantial penalties at stake, rules that apply to the investigation and trial of offences but the criminal standard of proof is not required in classified as offences under UK domestic criminal law, order for the OFT to make out an infringement. As (iii) the standard of proof to be applied under the Act stated above, the Tribunal examined all the recent was to be decided in accordance with the normal rules authorities on the issue of the relevant standard of of the UK domestic legal system, (iv) the structure and proof and conducted a useful analysis of these wording of the Act indicated that Chapter I and II authorities not limited to competition-related cases prohibitions should be proved to the civil standard of proof, (v) applying the well-known Speech of Lord Nicholls in Re H, there was no ‘intermediate’ standard in (2004) SLJR 14 English law between civil and criminal standards of Competition – freedom to provide services – anti- proof, and (vi) since cases under the Act involving doping legislation adopted by the IOC – purely penalties were serious matters, it followed that strong sporting legislation and convincing evidence would be required before infringements are made out, even to the civil standard. MECA-MEDINA & ANOTHER v COMMISSION OF THE EUROPEAN 12. The Court considered more recent cases on the COMMUNITIES (SUPPORTED BY THE standard of proof such as B v Chief Constable of Avon REPUBLIC OF FINLAND) & Somerset [2001] 1 WLR 640, R v Crown Court of Manchester [2003] AC 787, Secretary of State for the Court of First Instance of the European Communities, H. Legal, Home Department v Rehman [2003] 1 AC 153, Gough v President, V. Tiili and M Vilaras, Judges, Chief Constable of Derbyshire Constabulary [2002] QB 30 September 2004 (Reporter: TP) 1213, Re E T [2003] 2 FLR 1203 and Re T [2004] EWCA Civ 558 and held that the balance of probabilities Facts standard should apply to all issues arising under the 1. The applicants were international long-distance Chapter I prohibition, whether the issue is one of swimmers, who were subject to the Rules of FINA, the ‘primary’ fact or not. According to the Tribunal, Nothing International Swimming Federation. The applicants in the post-Napp cases should lead to a modification of tested positive for the prohibited anabolic substances, the basic approach set out in that case. nandrolone. The FINA anti doping rules contain a strict liability doping offence which is punishable with a 4 year 13. The Tribunal held that (i) JJB and Allsports were both ban for a first offence, and the applicants were duly liable for infringing Section 2 of the Act in relation to the banned for a period of 4 years following a hearing of a sale of England replica shirts and in relation to the sale FINA doping panel. of MU replica shirts; (ii) applying the standard of proof and taking into account the presumption of innocence in 2. In order to account for the possibility of endogenous favour of JJB as a starting point, the evidence was not (therefore innocent) production of nandrolone, the sufficiently convincing to establish that JJB was a party concentration required in order to make out a doping to a relevant agreement or concerted practice to fix the offence was defined at 2 nanogrammes (ng) per price of the new England replica shirt launched in April milliliter (ml) of urine). The levels found in these athletes 2001, (iii) JJF was party to a concerted practice having bodies were 9.7ng/ml and 3.7ng/ml respectively. After as its object or effect the maintenance of the retail price the athletes were suspended, scientific experiments of the MU Centenary shirt at launch in July 2001, (iv) the showed that nandrolone’s metabolites can be produced evidence did not make out the charge against JJB in endogenously by the human body, as a result of relation to a further alleged agreement in relation to consumption of certain foods such as boar meat, at a England replica shirts after March 2000. level which can exceed the accepted limit.

Commentary 3. In view of this development, the applicants and FINA 14. This case is significant in examining and highlighting consented to refer the case anew to the CAS for the numerous ways in which an agreement or reconsideration. By an award dated 23 May 2001, the concerted practice can be said to arise under the CAS reduced the penalty to 2 years’ suspension. Competition Act 1998. Active, as opposed to passive, Decisions of the CAS may be appealed to the Swiss involvement in the concerted practice is not necessarily Federal Court, but the applicants did not appeal the required. The Tribunal will require convincing evidence decision of the CAS. of infringement, given the serious nature of the

109 Volume 12 Issue 2 Sport and the Law Journal

4. The applicants filed a complaint with the Commission, constitutes an economic activity within the meaning of alleging a breach of Articles 81(1) and 81(2) of the EC Article 2 EC. Where a sporting activity takes the form of Treaty. They challenged the compatibility of IOC and paid employment or a provision of a remunerated FINA regulations and practices with the Community service, it falls within the scope of Articles 39 EC and rules on competition and the free movement of 49 EC. The prohibitions of the Treaty apply to the rules services. They alleged that fixing the limit at 2ng/ml was of sport which concern the economic aspect which a concerted practice between the IOC and its accredited sporting activity can present, for example, the rules laboratories. They also argued that the strict liability providing for the transfer of players between clubs or mechanism in the anti-doping rules and the lack of those which limit the number of nationals of other independence of the tribunals strengthened the anti- Member States which can appear for clubs in matches. competitive nature of that limit. They argued that the application of the rules leads to the infringement of the 9. On the other hand, the Treaty does not apply to athletes’ economic freedoms, guaranteed by Article 49 purely sporting rules which have nothing to do with EC and infringed Articles 81 and 82 EC. economic activity, for example, rules on the composition of national teams, rules which regulate the 5. The Commission rejected the applicants’ complaint. selection of competitors by national federations and ‘the Accordingly, the applicants brought this action before rules of the game’ in the strict sense. the Court of First Instance. They raised three arguments: 10. The Court observed that although in the previous (a) that the Commission erred in finding that the IOC cases it had not had to rule on whether the sporting was not an undertaking within the meaning of rules in question were subject to Treaty provisions on Community law; competition, the principles in those cases as regards (b) the Commission erred in finding that the limitation of the application of Community provisions on the freedom the athletes’ liberty resulting from the anti-doping of movement of persons and services are equally as legislation is not a restriction of competition within valid as regards Treaty provisions relating to the meaning of Article 81 EC; competition. The fact that the sporting legislation has (c) the Commission erred in finding that there was no nothing to do with economic activity with the result that infringement of Article 49 EC. Articles 39 and 49 EC do not apply, means also that it has nothing to do with the economic relationships of 6. The Commission submitted that the action was competition, which means that it does not fall within manifestly unfounded as it sought to challenge, for the scope of Articles 81 and 82 EC. reasons based artificially on the law of competition, a sporting penalty and scientific criteria established for 11. In the Court’s view, the campaign against doping the campaign against doping. It also stated that it had does not pursue any economic objectives. It is intended found that the IOC could be treated as an undertaking to preserve the spirit of fair play and safeguard the for the purposes of competition law, and sought to health of athletes. In this way, the prohibition of doping, justify its decisions under Articles 49, 81 and 82 EC. as a particular expression of the requirement of fair play, The Republic of Finland contended that sporting forms part of the cardinal rule of sport. Further, since activities, which included anti-doping rules, fall outside sport is essentially a gratuitous act, even when played the scope of Community competition law. professionally, the prohibition on doping and the anti doping legislation concern exclusively a non-economic Held (dismissing the application) aspect of sport. 7. The Court held that the central question raised by the application was whether anti-doping legislation could be 12. Accordingly, the Court held that since the prohibition challenged under Article 49 EC on the freedom to on doping is based purely on sporting considerations provide services and what consequences were to be and has nothing to do with economic considerations, drawn regarding Community competition law. anti- doping rules cannot come within the scope of the Treaty provisions on economic freedoms, and in 8. According to the Court’s settled case-law (in particular, Articles 49 EC, 81 EC or 82 EC. The Court particular the cases of Walrave [1995] ECR 1405, Dona held that this approach must apply to the anti-doping [1976] ECR 1333, Bosman [1995] ECR I-4921, Deliege rules in issue. [2000] ECR I-2549 and Lehtonen [2000] ECR I-2681), having regard to the objectives of the Community, sport 13. The Court noted that the mere fact that the application is subject to Community law only in so far as it of the anti-doping legislation would have economic

110 Sport and the Law Journal Volume 12 Issue 2

repercussions on the applicants was not sufficient to mean that it concerned an economic activity for the purposes of the Treaty. It is precisely because sporting rules have economic repercussions for professional sportsmen that the dispute arises on occasions whether the rule is sporting in nature or whether it covers the economic aspect of sporting activity.

14. The Rules do not have a discriminatory purpose. Therefore, even if the rules were excessive, they would not cease to be sporting rules and become rules whose lawfulness depends on an assessment according to economic criteria under competition law.

15. The Court rejected the suggestion that the fixing of an ng/ml limit for nandrolone which was too low served the economic interests of the IOC, on the basis that the argument was not sustainable or convincing.

16. The Court rejected the 3 pleas for annulment of the decision of the Commission. It also noted that the applicants had not exhausted their avenues of appeal under Swiss law.

Commentary 17. This decision of the Court of First Instance is the first decision of a European Court to the effect that anti- doping rules and regulations made by the IOC and adopted by international federations are not subject to scrutiny under Articles 49, 81 and 82 EC as they concern purely sporting, as opposed to economic, activities. The decision does not represent a surprising development, but it is a welcome clarification of the law.

(c) 11 Stone Buildings (Legal Precedents) Limited, 2004

111 Volume 12 Issue 2 Sport and the Law Journal British Association for Sport and Law: Report and financial statements

For the year ended 31 December 2003

Pridie Brewster Chartered Accountants Allied House, 29-39 London Road Twickenham, Middlesex TW1 3SZ

112 Sport and the Law Journal Volume 12 Issue 2

British Association for Sport and Law: Officers and professional advisers

Officers M. Watkins President M. Rosen QC Chairman M. Goldberg Vice Chairman G. Boon FCA Hon. Treasurer K. Vleck Hon. Secretary

Committee Members D. Bailey P. McInerney W. Cairns S. Rush E. Grayson K. Singh QC P. Harris J. Taylor T. Kerr QC R. Verow

Mr. R. Farrell resigned from the position of the Association’s Secretary on 9 June 2004.

Registered Office C/o Pridie Brewster Allied House 29-39 London Road Twickenham Middlesex, TW1 1SL

Bankers The Royal Bank of Scotland City of Manchester Group PO Box 320 St. Ann Street Manchester M60 2SS

Auditors Pridie Brewster Allied House 29-39 London Road Twickenham Middlesex TW1 3SZ

113 Volume 12 Issue 2 Sport and the Law Journal

British Association for Sport and Law: Independent auditors’ report to the members of British Association for Sport and Law

We have audited the accounts for the year ended 31 December 2003 on pages 3 to 7 which have been prepared under the historical cost convention and the accounting policies set out below.

This report is made solely to the members as a body. Our audit work has been undertaken so that we might state to the members those matters we are required to state to them in an auditor’s report and for no other purpose. To the fullest extent permitted by law, we do not accept or assume responsibility to anyone other than the Association’s members as a body, for our audit work, for this report, or for the opinions we have formed.

Respective responsibilities of Committee and Auditors The Committee is responsible for preparing the Annual Report and the financial statements in accordance with applicable law and United Kingdom Accounting Standards. In preparing them the Committee are required to select suitable accounting policies and then apply them consistently, make judgements and estimates that are reasonable and prudent, and to prepare the financial statements on a going concern basis unless it is inappropriate to presume that the Association will continue. The Committee are responsible for taking reasonable steps for the prevention and detection of fraud and other irregularities.

Our responsibility is to audit the financial statements in accordance with relevant legal and regulatory requirements and United Kingdom Auditing Standards.

We report to you our opinion as to whether the financial statements give a true and fair view and are properly prepared.

Basis of opinion We conducted our audit in accordance with Auditing Standards issued by the auditing Practices Board. An audit includes examination, on a test basis, of evidence relevant to the amounts and disclosures in the financial statements. It also includes an assessment of the significant estimates and judgements made by the Committee in the preparation of the financial statements, and of whether the accounting polices are appropriate to the Association’s circumstances, consistently applied and adequately disclosed.

We planned and performed our audit so as to obtain all the information and explanations which we considered necessary in order to provide us with sufficient evidence to give reasonable assurance that the financial statements are free from material misstatement, whether caused by fraud or other irregularity or error. In forming our opinion we also evaluated the overall adequacy of the presentation of information in the financial statements.

Opinion In our opinion, the financial statements give a true and fair view of the state of affairs of the British Association for Sport and Law as at 31 December 2003 and of its deficit for the period then ended and have been properly prepared in accordance with the Constitution of the Association.

Registered Auditors Pridie Brewster Chartered Accountants, Allied House, 29-39 London Road Twickenham, Middlesex, TW1 3SZ

18 October 2004

114 Sport and the Law Journal Volume 12 Issue 2

British Association for Sport and Law: Income and expenditure account for the year ended 31 December 2003

Income 12 months to 18 months to 31 December 2003 31 December 2002

Members Subscriptions 26,659 46,882 Journal Subscriptions and Sponsorships 2,871 1,368 Annual Conference 8,141 11,274 Annual Dinner – 1,529 Bank Interest 755 1,566 Miscellaneous Income 837 105 Licence fees 1,634 –

Expenditure 40,897 62,724

Journal 15,684 37,479 Journal Editors Honorarium 2,750 3,000 Indemnity Insurance 1,050 1,150 Conference Expenses 8,494 7,350 Annual Dinner – 6,914 Anniversary Celebration 3,339 – Secretarial Services, Bookkeeping and Accountancy 6,415 8,987 Legal and Professional costs 2,735 2,500 Sundry Expenditure 140 61 Travelling 688 1,380

41,295 68,821

Deficit for period before Taxation (398) (6,097)

Taxation charge: (159) (142)

Deficit for period after Taxation (557) (6,239)

Accumulated surplus brought forward 27,709 33,948

Accumulated surplus carried forward £27,152 £27,709

115 Volume 12 Issue 2 Sport and the Law Journal

British Association for Sport and Law: Balance Sheet for the year ended 31 December 2003

2003 2002

Fixed assets Computer Equipment 1 1

Current assets Debtors and Prepayments 900 5,307

Cash at Bank 29,042 24,988

29,942 30,295

Current liabilities Sundry Creditors and Accruals 1,615 1,739 Members’ Subscriptions in Advance 1,176 848

2,791 2,587

Net current assets 27,151 27,708

Net assets £27,152 £27,709

Represented by :

Accumulated funds

Accumulated Funds carried forward £27,152 £27,709

The Accounts were approved and signed on behalf Board on 18 October 2004. M. Rosen - Chairman

K. Vleck - Secretary

G.W. Boon - Treasurer

116 Sport and the Law Journal Volume 12 Issue 2

British Association for Sport and Law: Notes to the Financial Statements For the year ended 31 December 2003

1. ACCOUNTING POLICIES The financial statements are prepared by the Committee in accordance with applicable accounting standards. The particular accounting polices adopted are described below and have been applied consistently.

Accounting convention The financial statements are prepared under the historic cost convention.

Income and Expenditure Income and expenditure is accounted for on an accruals basis.

Members subscriptions Members’ subscriptions are payable in respect of the calendar year. Members’ subscriptions received in prior accounting periods were apportioned over the calendar year with a proportion of income deferred to the following accounting period.

Journal subscriptions The “Sport and Law Journal” is sent free of charge to each member. Non members can subscribe for the journal through the Association’s distributors. Income from journal subscriptions is shown net of the distributors charges.

Sponsorship The Association is essentially a voluntary organisation dependent upon the unpaid efforts of many individual members.

The Association’s administrative and editorial office is situated at the Manchester Metropolitan University. Various office expenses which would otherwise have to be paid by the Association are borne by the University.

No attempt has been made to reflect the value of these services within the income and expenditure account.

Taxation The Association is liable to corporation tax on any profit arising on the provision of services to non-members and on bank interest received.

Tangible fixed assets Depreciation is provided on cost in equal annual instalments over the estimated useful lives of the assets. The rates of depreciation are as follows:- 1 Computer equipment - 33 /3 straight line

117 Volume 12 Issue 2 Sport and the Law Journal

British Association for Sport and Law: Notes to the Financial Statements For the year ended 31 December 2003 (continued)

2. TANGIBLE FIXED ASSETS Computer Equipment £ Cost Brought forward and carried forward 1,249

Depreciation Brought forward and carried forward 1,248

Net Book Value At 31 December 2003 and 31 December 2002 £1

3. REMUNERATION OF COMMITTEE MEMBERS None of the committee members, save for the Secretary as set out below, received any remuneration for their services as committee members or any reimbursement of expenses in connection therewith (2002 - £Nil).

The Association’s Secretary, Mr. Farrell, received an honorarium of £2,500 for editing the journal and reimbursement of his travel expenses in the sum of £688 (2002 - £1,380).

4. TAXATION This represents Corporation Tax on interest received.

5. POST BALANCE SHEET EVENTS On 30 October 2003 British Association for Sport and Law Limited (“the Company”) was incorporated, pursuant to a Resolution of members on the 22 October 2003. It was further resolved that the company would acquire and take over the whole of the assets and undertaking of the unincorporated Association with effect from 1 January 2004. Therefore, these Accounts are the final set in respect of the unincorporated Association.

118 Contributions, Subscription and Membership

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Directors Maurice Watkins: President The School of Law at King’s College London · issues for individual athletes: doping, Murray Rosen QC: Chairman offers a one-year, part-time postgraduate discipline, player contracts, endorsement Mel Goldberg: Deputy Chairman course in sports law, leading to a College contracts, civil and criminal liability for Gerry Boon: Hon. Treasurer Postgraduate Certificate in Sports Law. sports injuries; Karena Vleck: Hon. Secretary The course is led by programme director · EC law and sport: competition law, freedom Darren Bailey Jonathan Taylor, partner and head of the Sports of movement; and Nick Bitel Law Group at Hammonds, who teaches the Walter Cairns course along with other leading sports law · comparative sports law: the North American Edward Grayson practitioners including Adam Lewis, Nick Bitel, Model of Sport. Paul Harris Alasdair Bell, Justin Walkey and Mel Stein, as Tim Kerr QC well as sports law academics such as Simon The course is taught in weekly evening classes Peter McInerney Walter Nicholls Gardiner, Gary Roberts and Richard McLaren. from October to March and is open to both Fraser Reid law graduates and non-law graduates. Sam Rush The course covers the range of key sports law For further details, visit the KCL sports law Kuldip Singh QC issues: website at www.kclsportslaw.co.uk. Jonathan Taylor · constitutional issues: self-regulation by sports Richard Verow governing bodies/the European Model of For a full prospectus and application form, Sport; judicial control of sports bodies; contact: Annette Lee, School of Law, King’s College London, Strand, London WC2R 2LS 0161 236 8288 · commercial issues: broadcasting, sponsorship, Tel: 020 7848 2849 · Fax: 020 7848 2912 IP rights, ambush marketing; E-mail: [email protected] Final Film CPD credits available; equality of opportunity is College policy. Registered in England. Company No. 4947540. Registered Office: 29-39 London Road, ISSN 1353-0127 Twickenham, Middlesex TW1 3SZ. VAT Reg No. 673 5989 73 Graphic Design BRITISH ASSOCIATION FOR SPORT AND LAW LIMITED VOLUME 12 · ISSUE 1 · 2004

Sport and the Law

Registered Office: c/o Pridie Brewster 1st Floor · 29-39 London Road Journal Twickenham · Middlesex · TW1 3SZ Telephone: 020 8892 3100 Facsimile: 020 8892 7604 SPORT AND LAW JOURNAL m 7:h t VOLUME 12 · ISSUE 2 2004 }Tq 4 &v?$ OLns